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  • Writer's pictureMiGem

When DIY Wills Go Wrong

Inheritance dispute cases are on the rise once more, with the number of cases heard in the High Court increasing from 227 in 2018 to 368 in 2019. As ever, the popularity of DIY wills – which frequently include errors – and the number of families opting to tackle estate administration without professional support, is likely a contributing factor.

As a professional will adviser, communicating with the family is one of the most effective ways of avoiding future disputes. Testators who discuss their wishes with their nearest and dearest in advance can anticipate or handle objections.

Associates will be used to discussing the testator’s family dynamics and advising on the consequences of the testator’s intended actions. Without this service, however, it is often up to beneficiaries to try and determine the intentions behind the will and any consequences it may have. Plenty of disputes start with a disagreement about what, exactly, the testator intended to happen; having a professional guide that discussion in advance can make all the difference.

A common objection might be that family and friends will respect the terms of a will, regardless of their personal feelings. A recent study by Direct Line, however, found that one in four people would be prepared to challenge a relative’s will if they disagreed with the terms of the distribution.

Getting a professional involved also means that advice can be given about the various formalities that are required for a will to be valid. A recent probate case handled by APS saw a home-made will that had been amended, manually, by the testatrix without any of these amendments having been initialled or witnessed.

Unless evidence to the contrary exists, there is a presumption that such amendments were made after the document was signed and witnessed: the result being that the amendments will fail. The Non-Contentious Probate Rules 1987 also require that a typed engrossment of the will is submitted to restore the document to its unamended form.

Another option would be to exhibit a copy will together with an affidavit of due execution to confirm that the changes were made before the document was executed (in accordance with rule 10(i)(b) of the NCPR 1987). In this case, however, no such document was forthcoming owing to the DIY route taken by the testatrix, and the beneficiary who had hoped to benefit from the amendments was sadly disappointed.

A second recent contentious probate case involved a former spouse. Under the terms of the will, no provision was made for this person. However, the divorce settlement had not been finalised at the time of the testatrix’s death, and the former spouse is now challenging the will under the Inheritance (Provision for Family and Dependants) Act 1975. The residuary beneficiaries in this case are minors and cannot, therefore, represent themselves in relation to the claim.

As this last case suggests, not all disputes can be foreseen or prevented. Challenges may be less frequent, however, where testator has drawn on the knowledge and skills of a professional.

Source - E. Hancock, Probate Services Director, APS Legal & Associates. - Oct 2020

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