The Law Society has recently published an article regarding the increase in will disputes, attributing it, at least in part, to the rise in the number of "DIY wills".
Many people are understandably reluctant to pay a solicitor to draft their will. Some of the many reasons we have encountered include:
- "I don't want to talk about my death; it's too morbid."
- "Why should I pay a solicitor to write my will? I can download a template from the internet."
- "Why do I need a will? The people I want to inherit will get it anyway."
These are commonly held views. But you might be surprised to learn how often things don't go to plan.
Talking about your death will not cause your death. We all know that. What it can do, though, is help those you leave behind deal with your death more quickly and avoid some of the stress at what is a very emotional time. By giving them clear instructions on what you want to happen to your money, property and personal items after you die, you save them from trying to work out what you would have wanted.
You may be right that the intestacy rules (which govern what happens to someone's estate if they die without making a will) will ensure your estate passes to the "right people". However, the process will not be nearly as straightforward as if you had made a will. Moreover, you will not get to choose who administers your estate. What if several people have the right to apply but don't get on? What if you don't like the spouse of one of your children and are concerned they might try to influence the actions of the administrator? Whilst there are rules an administrator must follow, it may surprise you to learn how often the rules are broken (innocently or not), and estates are eaten up in legal fees as a dispute plays out.
As for those asking why they can't do it themselves, maybe an example case will help debunk the myth that if your wishes are straightforward, you can't go wrong…
Julie prepared a will using a template she had downloaded from the internet. She wrote the will by hand and specifically requested that her neighbour, Pat, be appointed executor of her estate and receive the majority of her estate, estimated to be worth £150,000. The only other gift in Julie's will was £5,000 to the local hospice.
Julie kept her will in her dressing table drawer. When she died, her two daughters, who assumed their mother had never made a will, discovered it. They were shocked to learn that they were not to inherit. As far as they were concerned, they had a good relationship with their mother. They immediately thought Pat must have persuaded their mother to leave her estate to her and the local hospice. Their suspicions only rose when they learned Pat was a volunteer in the local hospice shop.
We will never know Julie's reasoning for making her will in the way she did. Perhaps she was influenced by Pat; perhaps she considered that her daughters, who both had good jobs and lovely homes, didn't need her money; maybe she respected the hospice's work and wanted to support it.
We do know that Julie's daughters spent six months in dispute with Pat and the local hospice. They incurred nearly £50,000 in legal costs between them, and in the end, they agreed that the estate should be distributed as follows:
- All legal costs to be paid by the estate
- £5,000 to the local hospice
- £49,000 to Pat
- £23,000 to each of Julie's daughters
Either Pat "got away with it", or Julie's last wishes weren't followed; either way, the lawyers ended up receiving the largest chunk of Julie's estate.
How could things have been different if she had instructed a solicitor to draft her will?
- Her solicitors would have been able to warn Julie of the risk of a claim being made against her estate by her daughters in the event she left her entire estate to Pat and the local hospice. It might have made no difference to what Julie decided to do, but she could at least have prepared a statement of reasons. This document sets out a person's reasons for making their will how they have. Had Julie done this, her daughters would have found it much harder to claim they should receive an inheritance.
- Her solicitors would have been able to answer questions posed by the daughters regarding the circumstances in which the will was made. They could explain to the daughters the process that Julie went through and the conversations they had with her regarding the content of her will. This, too, would make it much harder for them to claim against the estate.
- If there were any concerns about undue influence, lack of capacity or knowledge of the effect of the will, the solicitors could address these to help prevent any successful challenge to the validity of a will.
The cost to Julie would have been a few hundred pounds, but it could have saved her estate £50,000, not to mention the emotional strain such disputes can take on individuals.
This is just one example of many we see where a DIY will ended up as a contested will dispute and why we would always advise you to seek a solicitor's professional advice to make a will.
