Education | ED04 | Summer 2017

ADVERTISEMENT FEATURE
The pitfalls of
D.I.Y will writing
James Beresford,
Head of Wills, Tax,
Trust and Probate at
Slater and Gordon
There are a number of potentially disastrous pitfalls you can encounter when writing
your own will. We examine some of the more common problems.
Why should I make a will?
• It allows you to choose who you
wish to benefit from your estate
and who you do not wish to benefit
from your estate, on your death
• It allows you to appoint guardians
to care for minor children, in the
event that both parents die whist
the children are still minor
• It can be used to protect your
assets, for example, from a
spendthrift or from divorcing
family members
• It can be used to protect your
beneficiaries, for example,
from being taken advantage
of financially
This guide will help you understand
that having your will drafted
professionally is a small price to
pay, as it can save a substantial
amount of money in the long run.
Why should I get proper
legal advice?
Often, a home-made will is not
worded in such a way that makes it
legally enforceable. This may be
because the terms of the will are
ambiguous or because the will fails
to effectively dispose of your assets
in the correct manner. Can you
afford to take the risk that your
home-made will does what you
think it does?
• The Courts of Chancery entertain
a steady stream of litigants vying
to show that they were the
intended beneficiary from a
poorly drafted will
• Legal documents still use old
fashioned language, more often
than not, and yet the implication
of a single incorrect word can
affect completely what your
will does.
• The interpretation of will clauses
in professionally drafted wills
have stood the test of time for
centuries
• The legal rules surrounding
making a valid will are very
exacting and are strictly enforced
by the courts. One strike and
its out.
• Unqualified will drafters do not
always understand the intricacies
and nuances of will clauses. Legal
clauses can sometimes be cut and
pasted to a perceived template
which can put it out of sync and
result in errors.
For these reasons, and many
more, you should ensure that your
will is drawn up by a specialist
qualified lawyer.
If I make a DIY will, what
can go wrong?
In short, potentially everything!
At best some gifts in your will might
not take effect – at worst your will
might not be valid at all.
Your executors
• Do you know why you need an
executor?
• How many executors? (the
answer is not always the same)
• What if you don’t specify anybody
to be an executor: do you know
who then controls how your estate
is collected in and safeguarded,
and ensures that it is paid over to
the rightful beneficiaries?
Trustees
• Do you know if your estate will
need a trustee? And how many
trustees?
• What happens if you need a trustee
but haven’t specified one?
• Why are the executors usually
also the trustees and do they have
to be the same people?
• Why might you want different
types of trustees?
Guardians
• Do you know who will raise your
infant children if you do not
specify somebody?
• And what role might the Family
Law Courts then have in deciding
who should raise your children?
• Who has priority if you appoint
more than one guardian – could
this lead to a “tug-of-love”?
• Do you want a distant relative
raising your children if their only
motivation is getting access to
the money you have left behind?
Gifts and Legacies
Using the correct language in your
will is vital to ensure that your wishes
can be carried out after your death.
• What happens if somebody you
include in your will dies before
you – where does that gift go?
• Did you know that some gifts
automatically pass to somebody
else if you do not specify a
fall-back provision?
• What happens to a gift if you no
longer own that asset at your
death?
• What if you have several assets of
the same description but of differing
financial value, e.g. cars
• What happens if some items in
your will have to be sold by the
estate to pay debt, Inheritance
Taxes, or administration fees?
Even how you describe a gift in your
will can affect whether or not that
gift will take effect – so don’t take
that risk!
Beneficiaries
How would you feel if you knew that
your estate did not go to the people,
charities, or organisations that you
choose, or if it has not been used for
the purposes that you had intended?
• Do you know what the law say
about infants receiving assets or
money from your estate?
• How do you ensure that you can
leave inheritance for a minor and
it will be protected until they
reach an age that you feel they are
mature enough to be responsible
for it, for example at 21 or 25?
• Can you make financial provision
to provide for a family pet, and if
so how?
• How can you be certain that money
you have left to a charity is used in
the way you want it to be used, such
as for your local area?
• Why is the name, address, and
registered charity number
important?
Whilst you want to be certain that
your estate passes to those people
or organisations that you choose,
what if you want to ensure that it
does not pass to a certain individual
that you may have fallen out with,
or possibly worse – that you are not
yet divorced from?
How would you feel if that person
ended up inheriting your estate
because your will had not been
drawn up correctly, invalidating it,
just to save a bit of money?
What if I have already
written my own DIY will?
Contact us immediately for advice
and any assistance that you might
need to rectify it.
And… next time you want to write a
will, or make any changes to your
existing will, give us a call so that we
can draft your will professionally and
take the worry out of not knowing if
you have written your will correctly!
Our team of specially trained
lawyers prepare thousands of wills
every year and can advise you on
any of the more complicated or
specialist clauses that might be
relevant to your circumstances,
for example:
• What if I want somebody to be
able to live in my house after I have
died – what provisions do I need to
include in my will?
• What if I own my own company or
run a business and want it to carry
on after my death, or what if I want
to pass it on to my employees or
family members?
• What if I own property abroad –
do I need to know anything about
the law of the country where that
property is situated? And how
does that country’s inheritance
laws affect a will I write in England
and Wales? And is it relevant if I
already have a will made abroad?
• What if any of my beneficiaries
are receiving benefits from the
government? Can I leave them
something without jeopardising
their entitlement?
• Can I leave an inheritance for
somebody in a way that nobody
else will know who it is intended
for (that is, make a secret gift)?
These might sound like fanciful
provisions but our specialist will
drafting lawyers prepare wills
with highly complicated personal
and tax saving provisions like these
every year.
Increasingly, we are coming across
DIY wills that do not make the
provisions intended at the time they
were written and blissful ignorance
ensures that the errors in the will
are never corrected. And it’s then
too late.
A poorly drafted will can have
expensive tax consequences or lead
to expensive court litigation, just to
understand how the law says your
estate must be divided.
So don’t leave it to chance just to
save a few pounds now – it could end
up costing your estate considerably
more than you could ever imagine.
James is the author of a book
“No will – no say” which is a simple
guide to wills and estate planning
and covers the essential points you
need to consider when thinking
about writing a will.
To make an enquiry without
any obligation, call us on
0203 319 2685.