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Covid-19 update: DIY wills - a precautionary tale

Posted: 22/06/2020

In these present times of uncertainty during the UK lockdown, the concept of writing a will has been brought to the forefront for many. While it is important to ensure that your testamentary wishes are comprehensively recorded in a valid will [see Covid-19 and making a will – your questions answered], this is not, necessarily, the end of the story. This is particularly pertinent if you are considering writing the will yourself, or with limited assistance from an online/postal company offering will writing services.

The purpose of the will is to record what you would like to happen to your estate when you are no longer here. In the absence of a will (or a valid will), the Intestacy Rules will determine who is to benefit from your estate. This is not how many would wish their estate to be devolved.

In certain situations, it is possible to have a will which seems valid on the face of it, but does not achieve the wishes of the testator (the person who is making the will).

Some common examples of this include:

  • The will is validly written but one of the attesting witnesses is a beneficiary (or the spouse/civil partner of a beneficiary) under the will.

EFFECT: The will itself will not be invalid but the gift to the beneficiary concerned will be void.

  • One or both of the attesting witnesses were not present at the time that the will was signed by the testator.

EFFECT: This could invalidate the will in the event that there is a challenge after death.

  • The will makes specific gifts of personal property (eg paintings and jewellery) which are no longer owned by the testator at the time of their death.

EFFECT: The gift(s) to these beneficiaries will fail. 

  • The will lists specific bank accounts which have been closed or are empty at the time of death.

EFFECT: The intended gift of the monies held at the date the will was made will fail as they are no longer in existence, or have been transferred to a different account/s.

  • The will fails to deal with the residuary estate (ie any assets not specifically disposed of in the will).

EFFECT: There will be a partial intestacy over these assets and they will pass according to the Intestacy Rules. This could, for example, include savings or investment accounts which can be substantial and can have the effect of diverting assets away from the testator’s preferred beneficiaries.

  • The will provides for beneficiaries who die during the testator’s lifetime. There are no substitute provisions in the will to direct what should happen in this event.

EFFECT: Where the gift was other than a gift of the residue, the gift will lapse and fall to the residue (hence increasing the amount received by the residuary beneficiary/ies). Where a gift of the residuary estate lapses, the Intestacy Rules will determine who is to benefit.

  • The testator makes a will without having taken advice on the tax implications.

EFFECT: The UK inheritance tax (IHT) regime is very complex and there are certain reliefs and exemptions than can benefit an estate, such as the Residence Nil Rate Band (RNRB), spouse exemption or the charity exemption. Under the current tax rules, it might be possible to utilise these and ensure tax planning is in place for the estate. However, in order to ensure that the maximum benefit is achieved, it is important that advice is sought prior to the execution of the will. Whilst there is always the risk that the tax rules may change after the will has been executed, there is greater risk in not taking any estate planning advice prior to executing a will, as the opportunity for the testator to mitigate is then lost.

  • The will leaves a specific legacy to charity, but either the charity has merged by the time of the testator’s death, is no longer in existence, or is not properly identified in the will.

EFFECT: This will cause uncertainty which will be for the executors of the estate to determine. It can involve additional costs to the estate in obtaining legal advice from specialist counsel, reducing the sum available for distribution. If the gift cannot be saved, this does not fulfil the charitable intentions of the testator. A failed gift to charity could also impact the rate of IHT payable if it is a taxable estate. This would also diminish the funds available for distribution to the remaining beneficiaries.

  • The will fails to properly appoint or identify executors (ie the individuals intended by the testator to administer their estate).

EFFECT: Statutory rules dictate who will manage your estate; these may be individuals you would not choose or wish to be involved in this process. It is also possible that there is not anybody capable/willing to act which could cause delay and increase costs.

  • The testator had a will which they have made changes to themselves by crossing through the original clauses and/or writing amendments on the face of the will.

EFFECT: An amendment which has not been properly executed may not have the intended effect. Furthermore, if the will is defaced and the original wording unclear, this could be treated as being invalid. It is therefore prudent for the testator to ensure that their intentions are made clear by executing a new will or codicil to the original will. This may well be less costly than leaving the estate to deal with these issues after their death.

It is therefore essential to take advice from an appropriately qualified professional when dealing with something as sensitive and important as your will. The most prevalent reason for doing so is that ultimately, you will not be around to provide any clarification when the will takes effect.

Estate litigation can be extremely expensive and can deplete the assets of an estate very quickly, as legal costs escalate. There is also no guarantee that any remedy will be available to a disappointed beneficiary, in a situation where the testator has simply erred in writing or executing the will.

The advantage of using a solicitor or professional will writing specialist to write your will is that they will work with you to understand your intentions and provide you with tailored advice to ensure that your wishes are put into effect. They should also keep contemporaneous notes of what was discussed with you on their file, which may prove crucial in the event of a dispute.

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