When making a homemade Will, there are various risks that might result in the Will not having been drafted correctly and might ultimately result in the Will being invalid. Mistakes could be made without realising it and therefore your wishes may not be fulfilled upon your death.
The criteria for a valid Will are that the Testator (the person making the Will) must be at least 18 years of age, have the required level of mental capacity and be able to understand the nature and effects of making a Will, be aware of the extent of his assets passing under the Will and be aware of any claims to which he should have regard.
The Will must then comply with certain formalities that need to be fulfilled. At a basic level, the Will must be in writing and signed by the Testator. Not only must it appear that the Testator intended by his signature to give effect to the Will, but the signature must be made in the presence of two or more witnesses present at the same time and each witness must then sign the Will in the presence of the Testator. If these specific legal formalities are not followed, or there is a question over the validity of the Will, then the Will may be deemed invalid by the Courts which could result in a previous Will being considered as the current Will or, if no previous Will was signed, the Intestacy Rules might then apply. Most likely in both of these circumstances it would not be the Testator’s wishes.
In respect of the witnesses used, although there are no particular rules, the witnesses should both be mentally and bodily present and bearing in mind they may be required to give evidence of due execution in the future, witnesses should ideally not be too old or too difficult to trace. Although a beneficiary or their spouse/civil partner would be considered a competent witness, and the validity of the Will wouldn’t be affected by such witness, the beneficiary would then lose his entitlement under the Will unless there were at least two other independent attesting witnesses.
An ideal witness would be someone over the age of 18 years, of sound mind be independent and not a beneficiary or spouse/civil partner of any beneficiary contained within the Will.
An example of a bad witness would be someone of unsound mind, or who was intoxicated or a blind person as they would then not be able to see the signature of the Testator being made.
Along with the Will being signed in the correct way, the contents of the Will also need to be drafted correctly, to ensure that the Testator’s estate is distributed according to their wishes upon their death.
Areas in which issues are commonly found include the following: –
- Beneficiaries must be named correctly. For example, if charities are included as beneficiaries, their full charity name, address and charity number should be included to avoid any uncertainty of which charity was intended to be a beneficiary. This could put the Executors at risk of potentially paying out to the wrong charity if they go by what they think the Testator intended rather than was written on the Will. By including addresses of beneficiaries within the Will, this would help identify the correct recipient.
- When drafted a Will, you need to ensure that the whole of the estate is distributed. For example, you may have a Will which gives away some property, but it does not effectively dispose of everything which would then result in a partial intestacy.
- If a beneficiary dies before the Testator, consideration should be made as to who the gift then passes to.
- If the Testator has minor children, have they appointed guardians to care for these children in the instance that they die before the children reach the age of 18?
As you can see above, there are various reasons why a homemade Will is not suitable. Although a homemade Will is a cheap alternative to a professionally drawn up Will, the ultimate costs in putting right any errors made, would far outweigh any saving made. Therefore, if you would like to avoid the potential problems of having a homemade Will, please seek professional advice and contact our specialist Wills, Trusts and Probate team.