It might seem tempting to prepare your own will, without involving a solicitor, or use an unregulated writer as a cheaper alternative. Whilst this represents a more affordable option, particularly if the testator’s (the person who makes the will) assets seem straightforward, choosing these approaches can present a number of possible complexities and issues.
In this article, we have covered a number of important aspects you should be aware of if you are considering cheaper ways of preparing a will.
‘Do it yourself’
With a host of available resources online for will writing, a testator may use a free or low-cost pro forma template to prepare their own will. These templates can appear to outline the required information simply, but sometimes leave room for greater legal uncertainty.
When choosing to use a competent solicitor, they should advise you on key aspects such as:
- choosing your executors (those responsible for your estate)
- ensuring your assets are passed to the intended recipients
- mitigating the possibility of disputes
- establishing who will be responsible for children
- providing for beneficiaries in blended family situations (with children from previous marriages)
- providing suitably, by potentially leaving a trust for children, dependents, vulnerable people, or profligate beneficiaries
- relevant tax planning and reliefs
- complications regarding foreign assets
Many people incorrectly assume that their next of kin will automatically be entitled to deal with their affairs (financial or otherwise) should they lose capacity; this is not always the case. Private client lawyers would ensure that proper, lasting powers of attorney are discussed and put in place, so the most suitable person has these responsibilities.
Third party influence
The influence of fraud, or elder abuse is more likely should a testator choose to prepare their own will.
This risk can come from greedy associates or family members, who look to profit from the will by influencing its writer. Unfortunately, with more people suffering from age-related illnesses (such as dementia), this increases the chance of such unscrupulous actions.
To identify any undue influence, a competent solicitor will organise an initial meeting, often in-person. This ensures that the will’s instructions originate solely from their client, independent of any third party. The solicitor’s notes from this meeting should serve as evidence should any disputes arise further down the line.
Requisite capacity
Should a solicitor have doubt about the mental capacity of their client, they should seek a suitable medical opinion. This would require a medical practitioner to be satisfied that the testator has testamentary capacity (sound mind and memory to make a valid will). This is necessary where a testator is ‘aged’ or has a serious illness, as well as more specific memory issues (such as dementia).
When the correct procedures are followed, this should eliminate any future claims that the will is invalid due to the testator’s lack of requisite capacity. Disagreements can arise when beneficiaries or other parties are disappointed by the contents of the will. If you chose to prepare your own will, such challenges would be more difficult to resolve.
Medical capacity assessments are advantageous because they:
1. Prevent incapacitated people from making wills they don’t understand
2. Enable people with fluctuating capacity to make a valid will in a lucid moment
3. Provide comfort to the testator that their wishes will more likely be realised
Proper procedure
Some mistakes can go unnoticed for years in a self-made will. This can sadly occur after the testator has passed away, where their true intentions can no longer be determined.
Employing a competent solicitor will ensure the relevant formalities are performed, such as observing the correct witnessing and signing procedures.
Please note:
The amendment to the Wills Act 1837, which allowed wills to be witnessed by ‘videoconferencing or other visual transmission.’
These provisions were useful during the pandemic, when normal witnessing procedures could not be followed, but have since meant that certain formalities can be challenged more readily. This isn’t to say that the proper procedures have not been followed, but this method of witnessing leaves a greater chance of uncertainty, particularly if a testator is coordinating this process themselves.
Unregulated will writers
Another, potentially cheaper option is employing an unregulated will writer.
There are no requirements for unregulated will writers to have legal qualifications, insurance, or a professional code of conduct. Therefore, some providers fail to comply with consumer protection law, meaning their clients are misled and overcharged, with no formal corrective procedures available should this be the case.
In contrast to this, solicitors must maintain suitable professional indemnity insurance, protecting the testator and their beneficiaries if any mistakes be made.
As well as this, unregulated will writing companies can include contract terms, such as omission of cancellation rights and exclusion of liability. Some terms may see the will writing firm automatically appointed as executor, so they can charge significant fees for administering the estate.
When irregularities in documents prepared by unregulated will writers are discovered, competent solicitors are sometimes needed to amend documents.
So, what should you do?
It’s vital that you feel confident that your will has the desired effects. Having this assurance will reduce the chance of any unnecessary worry.
While the fees associated with employing a solicitor can seem costly, what price do you put on certainty?
Beyond this, remedying any errors made in a self-made will or will prepared by an unregulated writer can also be expensive and far more complex. Choosing the cheaper option can be a false economy.
Decide what will work best for your situation but be aware of the risks outlined above.
Whilst solicitors can assist you with legal matters, you may wish to work with our team (potentially in collaboration with a solicitor) on the financial/tax implications of your will. Where there is a larger estate in question, considering Inheritance Tax in the structure of the will is essential. Contact us if you require some guidance with these aspects.
