25 June 2020

Will a rise in DIY wills lead to increase in inheritance disputes? Roberta Harvey and Fiona Smith write for Eprivateclient

The COVID-19 pandemic has had an impact on every aspect of life in the UK. Many people, whether directly affected by the virus or not, have started to think about their own mortality and the need to make a will.

There have always been those who have chosen to draft their own wills, but there is anecdotal evidence that recently, perhaps due to the difficulties of lockdown, the numbers of homemade wills have increased. The question then arises, what consequences might we expect to see over the coming years as a result?

This article was first published in EprivateClient and can also be accessed here.

Capacity

If a person makes a will at a time when they are ill, there is a risk that their testamentary capacity could be called into question later. For example, it could be suggested that the testator did not appreciate that they were actually making a will or, was not in a mental state to know and/or approve of its terms, due to the effects of the illness. Such a challenge may be more likely to succeed where no solicitor or doctor can comment as to the testator’s capacity, or assist them in considering relevant issues, when preparing or executing their will.

If a homemade will is prepared by someone on the instructions of a sick family member or friend, it could later be challenged on the grounds of undue influence; that is that the testator was coerced into making the will by the draftsman. People who are ill are more likely to be vulnerable and more susceptible to outside influence.

Content of the Will

Homemade wills often fail to reflect the true intentions of the testator due to drafting errors.

A common mistake is for the testator to focus on specific assets but neglect to deal with the residuary estate, resulting in a partial intestacy. Also references to particular accounts or investments that have been closed or changed by the date of death, the proceeds being reinvested elsewhere, can result in individuals who should have benefitted, getting nothing.

Errors of this sort, which lead to a will failing in part or even in its entirety, are frequently found in documents prepared by someone unfamiliar with legal drafting.

Errors of this nature can result in claims being brought against the testator’s estate following their death by disappointed beneficiaries. As well as claims against the validity of the Will, claims can be brought under the Inheritance (Provision for Family and Dependants) Act 1975. The categories of people who could bring such a claim are spouses, cohabitees, children (including those treated as children of the deceased) and those being maintained by the deceased immediately before death.

Execution

Many documents, such as contracts and deeds, can now be signed electronically. In England and Wales, however, wills must be executed in accordance with the Wills Act 1837. This requires a will to be signed (or the signature acknowledged) in person by the testator, or signed by another person authorised by the testator, in front of two witnesses. The witnesses must each attest and sign the will (or at least acknowledge their signatures) in the presence of the testator but not necessarily each other. If a beneficiary of the will (or their spouse) is a witness, their gift will fail, while the remainder of the will is still considered to be valid.

These strict provisions have come under scrutiny during the pandemic when, until recent weeks, it has been against government guidelines for people from different households to meet in person.

In Scotland, the parliament brought in revised rules to allow witnessing to be carried out "virtually" using video-link. The UK government was lobbied by legal professionals to consider the possibility of relaxing the formal requirements for England and Wales, but decided against a change. As a result, the physical presence of witnesses has remained an essential part of the execution process.

As each witness is only required to see the will signed (or the signature acknowledged) by the testator, and does not need to be able to read the testator's signature or the text of the will, a distance of two metres between testator and witnesses need not prevent the correct execution of a will.

If the simultaneous presence of all three parties in one room is regarded as unduly risky, using the testator's garden or other outdoor space is acceptable. It has even been acknowledged that witnessing through a window would suffice

The rules, whilst awkward, should not make the proper execution of a will impossible. There is a very real possibility that in coming years we shall see wills being challenged on the grounds that, whilst apparently having been correctly executed, in fact the formal requirements were not met.

Conclusion

Whilst it is rarely advisable to prepare a homemade will, the risks are increased at the moment, due to the issues outlined above and the claims that could be brought against estates after the testator’s death.

Sadly, such claims are likely to increase as some relationships have become strained during the pandemic (resulting in the possibility of people being disinherited) and the serious financial hardship being felt by many can result in speculative and even nuisance claims being brought.

Notwithstanding this if there is no alternative, a homemade ‘holding will’ may be better than the potential of dying intestate, but this should be reviewed by a professional as soon as possible.

Disclaimer

The current global crisis is evolving rapidly, and the rules and guidance for individuals, companies and other entities to manage its implications are similarly fast moving. Notes such as this may be out of date almost as soon as they are published. If you have any questions prompted by this article or on any other matter relevant to you, please get in touch with your usual contact at Forsters.

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