There is a lot of information on how to make a will or writing your own DIY Will. It can be a cheap option, but with something perhaps as important as your Last Will & Testament a “cheap will” may not be advisable. There are various legal formalities that must be followed to ensure that the Will is valid and even the simplest error or omission could cause problems for your family and friends after your death.
The following are the most common causes of legal problems and disputes surrounding a Will. Such disputes can cause considerable distress and expense, and yet with careful attention, professional advice or following a strictly guided format that you might find with an internet or online Will, they can be avoided.
What if the Will is nowhere to be found?
Sometimes after a death, there is uncertainty over whether a Will was made, and where any Will that was made has been stored. If your loved ones don’t know whether you have made a Will, or they believe you’ve made a Will but don’t know where to find it, this may mean that they have to spend a lot of time searching for it, and if it is not found you will be deemed to have died ‘intestate’. If you die “intestate” then it could be the state that decides how your money and assets are disbursed.
It’s possible that an old Will is found rather than your Last Will & Testament and so when you make a Will, it is important to inform your executors that you have made a Will or amended your Will, and to let them know where it is stored, which makes it easy to locate and reduce hassle for executors when dealing with your Will and probate.
Has my will been correctly signed, dated and witnessed?
Incorrectly executed Wills are a surprisingly common problem, and it is important to note that a Will that is not signed, dated and witnessed according to the rules is not legally valid. If such a Will were challenged in court, it would be highly unlikely to be upheld as a valid record of your Last Will and Testament.
To ensure that your Will is legally valid, the following process must be followed. You and your two witnesses must be in the same room at the same time for the whole process of signing and witnessing your joint or even single Will. The witnesses must not be beneficiaries. If this does happen, it does not invalidate the entire Will, but it does prevent your witnesses from receiving any benefit from the Will. In other words, the gift that you had intended to leave them will ‘fail’. You must sign the Will first, using your usual signature, in the sight of both the witnesses. Then each witness must sign in your sight and in the sight of the other witness. The Will must be dated with the date that it is signed and witnessed. Please note also that a blind person cannot be a witness and no extra pages can be attached to your Will.
If you complete the Will in front of a solicitor or Will drafter with your witnesses present they will guide you accordingly and equally if you follow the details and easy to follow instructions you usually find with an online Will then all should be completed properly.
Is the Will unfair?
If when making a Will it contains instructions to distribute your estate in a way that is seen as unfair by your surviving loved ones, it is possible that it will be altered or challenged after your death. If a spouse or dependent has not been provided for in a simple Will they may apply to the courts for money from your estate, under the Inheritance (Provision for Family and Dependants) Act 1975.
Also where all beneficiaries agree that a change to your Will is required, they may execute a Deed of Variation, sometimes known as a Deed of Family Arrangement, within two years of your death.
Therefore to ensure that your wishes are carried out, it is advisable to make sure that your Will provides for all of your dependents, and if you do wish to exclude someone or leave any large legacies to others, you should take legal advice. For example the usual case is when one of your children is totally left out of the Will, which they then successfully challenge. The advice is that even if you do not want one of your children to benefit from your estate it is always best to include them with something, maybe a small amount of money but not a derisory amount.
So, to avoid your joint or single Will being deemed unlawful, being challenged by family members or a gift failing, the Will writing process should be understood or good instructions, advice and guidance sought in order to make a Last Will and Testament which is error free and unchallengeable.
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