Making your own Will has never been easier.
You can download templates online. You can buy will-writing kits cheaply. You can even sit down with a blank sheet of paper and write out what you want to happen to your property when you die.
And sometimes, a homemade Will works perfectly well.
The difficulty is that you usually don’t find out whether it works until the one person who could explain what they meant is no longer here.
That is where problems begin.
A Will can be understandable without being legally clear
We regularly see Wills where, after reading the document and looking at the surrounding circumstances, it is reasonably obvious what the person was trying to achieve.
But a Will does not simply need to give a general impression of someone’s wishes.
It has actually to do the legal job required of it.
For example, somebody might write:
“I leave my house to my daughter and everything else to my family.”
That may sound straightforward.
But who exactly is “my family”? Does that include children only? Grandchildren? A spouse? What happens if one of them dies before the person making the Will? What happens to property bought after the Will was written?
Small gaps in drafting can create surprisingly large problems.
Common problems with homemade Wills
Some of the issues we encounter include:
- Incorrect signing or witnessing. A Will has to comply with particular formalities. Getting these wrong can put the validity of the entire Will at risk. Northern Ireland guidance recommends using a solicitor because you must follow legal formalities.
- Forgetting the residue of the estate. Someone carefully lists who should receive the house, car or particular sums of money but never says what happens to everything else. Property not effectively disposed of by the Will can then fall to be dealt with under the intestacy rules.
- Ambiguous beneficiaries. “My children”, “my nephews”, “the grandchildren” or even a person’s name can create difficulties where it isn’t entirely clear who was intended.
- Gifts that no longer work. The Will might leave a particular bank account, investment or property which the person subsequently sold, closed or replaced.
- No proper substitute beneficiary. A person may leave everything to their spouse or one particular child without saying what should happen if that person dies first.
- Problems appointing executors. Executors may have died, become incapable of acting or simply be unwilling to take on the role. Where none of the named executors can act, additional legal questions arise about who is entitled to apply.
- Contradictory provisions. Homemade Wills sometimes contain several instructions which individually make sense but do not work properly when read together.
- Changes written onto the Will. Crossing something out, adding something in the margin or attaching another sheet of paper can cause considerable difficulty if the changes have not been made with the necessary formalities.
- Failing to deal with the whole estate. This can produce a particularly strange result: part of the estate passes under the Will while another part passes under the intestacy rules.
“But we know what Dad meant”
This is perhaps the most frustrating situation for families.
Everyone may agree about what Mum or Dad intended. The Will may even make that intention reasonably obvious.
Unfortunately, after death we cannot simply rewrite the Will to make it say what we think the deceased meant to say.
Our starting point has to be the document they actually signed.
That does not necessarily mean that every badly drafted Will is hopeless.
There can be ways of dealing with defects or uncertainties.
Sometimes the wording can be properly interpreted so that the Will can be admitted to probate and administered. Sometimes further evidence or additional steps are required. In more serious cases, an application to court may be necessary.
Northern Ireland law even gives the court a power in certain circumstances to rectify a Will where its wording fails to carry out the testator’s intentions because of a clerical error or a failure to understand their instructions.
But that is the important distinction.
Being able to fix a problem after death is not the same as avoiding it in the first place.
A £50 problem can become a £5,000 problem
One of the great ironies of homemade Wills is that people usually prepare them to save money.
For a straightforward estate, having a solicitor prepare a Will is relatively inexpensive.
Trying to establish what a badly drafted Will means after somebody has died can be considerably more expensive.
There may be correspondence between beneficiaries, affidavits or other evidence required for the probate application, specialist legal advice and, in the worst cases, court proceedings.
There is another difference too.
When we prepare a Will, we can ask questions.
What if your wife dies before you?
What if one of your children dies before you, leaving children of their own?
Who should be your executor?
Who receives everything you haven’t specifically mentioned?
Do you own your house jointly?
Have you made an earlier Will?
Is anybody financially dependent upon you?
Those questions are often more important than physically typing the Will.
A template cannot always spot the question you did not realise needed to be asked.
If you find a homemade Will after someone dies
Don’t panic and don’t assume it is invalid.
Equally, don’t write on it, remove staples, attach documents to it or try to “correct” anything yourself. The original Will is required for a probate application, and official Northern Ireland guidance specifically warns against removing existing staples or bindings.
Take the original document to a solicitor to examine it.
We frequently encounter unusual, old-fashioned and homemade Wills. Some are perfectly valid. Some contain problems which can be overcome. Others require more detailed investigation.
The important thing is to identify the problem before distributing the estate.
The best Will is not necessarily the longest one
A good Will does not need twenty pages of legal language.
For many people, it can be relatively short and straightforward.
What matters is that it has been properly executed, clearly identifies who should administer the estate, deals with the whole estate, anticipates the obvious things that might change and accurately records what the person making the Will actually wants to happen.
Because when somebody dies, their Will has to speak for them.
And at that point, unfortunately, they are no longer around to tell us what they meant.