Are homemade Wills a good idea?

Creating a homemade Will can seem to be a no-brainer for those wanting to make sure their wishes are properly recorded and followed on their death – it is free, quick, and easy, and can be done from the comfort of your own home.

However, DIY Wills present a number of hidden risks to the untrained legal eye. What may start off as a cost-free option can result in endless fees for the intended beneficiaries of the estate.

One crucial factor is that a Will becomes valid and effective only if it is properly executed. If not, an individual’s estate might pass under a previous Will or through the intestacy rules, which dictate the distribution of an estate when someone dies without a Will. Additionally, if the Will is signed by anyone intended to benefit from it, any gifts or property designated for them will not take effect.

Without legal expertise, Wills can be drafted which lack essential clauses. For instance, if a survivorship clause – which requires a beneficiary to outlive the testator by a specified period – is not included, and the testator and beneficiary die in quick succession, a significant portion of the estate could pass according to the beneficiary’s Will, rather than the testator’s intentions. Partial intestacies may arise where an estate does not include substitute beneficiaries or an accrual clause. Similarly, if an individual has complex assets, careful consideration must be given to these in the Will. A homemade Will is likely to overlook these complexities and fail to address inheritance tax planning.

The wording in a Will needs to be precise and clear for it to take effect as the testator intends. Without legal advice, it is easy for ambiguities to arise, which invites disputes between beneficiaries. Costs can quickly accumulate on disputes and deplete an estate to the detriment of beneficiaries.

Similarly, fraud and undue influence are particular risk factors with homemade Wills, due to the lack of professional and independent oversight in the Will’s creation. A DIY Will may be able to be challenged easier, as there is no record of surrounding information to give context to the wishes behind the testator, or to shed light on the individual’s capacity. In particular, it can be easy for friends, neighbours, or family members to exert pressure on a testator to write their Will in a specific way, which goes against the individual’s previously recorded wishes. A Will created in such circumstances is likely to excite the suspicions of a court.

Instructing a solicitor to prepare a Will means that the aforementioned situations can hopefully be avoided. A solicitor has a duty when taking instructions to ensure that their client has capacity, that their wishes are properly recorded as their own wishes, free from any influence, and ensure that the Will is properly executed. As such, there is an element of independent scrutiny and care that is lost if a Will is homemade. Whilst it is not always possible to avoid the claims of a disappointed beneficiary, you are at least doing the best you can to try and protect your testamentary wishes and estate from any claim, as all the circumstances surrounding your Will instructions and execution will be examined by the court in any dispute.