01-06-2020

Wills - The importance of getting it right

The Coronavirus has affected everyone in many different ways, but one thing is for sure, it has provided a reminder to many of us about the importance of having our personal affairs in order.  For most people, this process starts by writing a Will.

There are several ways to write a Will, including buying a “Will Pack” from the supermarket, downloading a DIY form from the internet, or by using an unregulated Will Writing company.  With so many alternatives available, you might wonder why people choose to use legal professionals.

 

Here is what we think are the main reasons;

-One size does not fit all when it comes to Wills and it is important for you to choose the correct type of Will to suit your exact family circumstances.  A trained legal professional, in addition to putting your instructions down on paper, checks that you have the mental capacity to make a Will, provides advice on things like Inheritance Tax, and discuss whether Trusts maybe required in the Will to protect vulnerable beneficiaries. 

-A legal professional knows exactly how to word the wishes in your Will, helping to avoid any ambiguity. Small differences in the wording of gifts, for example, can produce quite different results. We have seen so many examples of DIY Wills where the wording is unclear and legally uncertain. Any ambiguity in the wording can mean that the gift may actually fail and that the Will is open for challenge, with the outcome often going against your initial wishes.

-There are strict rules governing how a Will must be signed and witnessed in order for it to be legally valid. Get this wrong and your Will is not worth the paper it is written on.  A Will must be signed and dated in the presence of two adult witnesses, neither of whom should be mentioned in the Will, or married to somebody mentioned in the Will.  This requires you to be in the same room, and to watch each other sign and date the document. With this in mind, the witnessing of Wills has been quite challenging recently because of the social distancing measures, however, it is still possible, and all of the Wills that we have produced in lockdown have been issued with comprehensive signing instructions, helping to ensure that our clients finalise their Wills correctly.

-Law firms can provide that extra reassurance to clients because not only is their work highly regulated and insured, secure storage is often included.   Storing your Will is a key consideration as it may be some years before it is required and law firms have strict regulations about the way they have to store Wills. If you use a Will writing company who are not in business when the time comes, this can cause real difficulty for the executor.  Even if a law firm goes out of business, the Solicitors Regulation Authority keeps track of who takes over custody of all the Wills they were keeping, so there should never be a problem.

 

-A legal professional can also discuss with you your choice and suitability of executors. Being an executor of a Will can be a big responsibility, at a time when you will already by grieving. Whom you choose is an important factor to consider and we can provide advice.  If the estate is slightly complex, it can add additional stress. We see this a lot in DIY Wills, where there is say a farm or a business involved and the person who is instructed as the executor simply finds it really difficult to sort out.  One of the other common issues is where two executors are appointed and they do not get on and cannot agree. This causes a real problem when it comes to the administration of the estate.

 

Challenges post-death

A Will can be challenged after your death and deemed invalid if there is reasonable doubt about the circumstances in which your Will was made. The things that will be examined include;

-whether you were forced to make your Will under pressure from someone else

-whether you had sufficient mental capacity at the time the Will was made

-whether it was signed and witnessed correctly and not made in a fraudulent manner.

Legal professionals can help to ensure that such doubts are removed by the use of a proper “attendance note” that, backed by their insurance, shows instructions were taken from a client with sufficient mental capacity and under no pressure from anyone else.  Unregulated and “DIY” Wills may not be able to withstand challenges about how the Will was made, as well as those made by a solicitor.

If a validity challenge is successful, the Deceased’s previous Will takes effect or, in the event that there was no prior Will, the intestacy rules will apply. This situation can be very stressful for everyone involved, so the best way to avoid this is to make sure that your Will is professionally written in the first place.

If you have any queries about writing a will or maybe have concerns about the validity of a Will then please get in touch. We have a professional Will writing team as well as an experienced Will & Inheritance disputes team in Chesterfield, Dronfield, Mansfield and Sheffield.

 

Photo by Melinda Gimpel on Unsplash