Given the ongoing pressure on family finances, people considering how their assets should be distributed after death may be tempted towards self-made wills, which can be purchased over the counter, are usually inexpensive and look simple to complete. But are users being ‘penny wise, pound foolish’? Andrew Paterson believes so and lists their ten basic flaws
1. Wrong law. The first flaw is that most will-drafting packages are intended for use in England and Wales. The law in Scotland is quite different and a will prepared using such a package may not be valid north of the Border.
2. Signing defect. In order to be valid, a will must be signed in a prescribed manner. As already mentioned, the rules are different in Scotland and England/Wales. A will not properly executed may require additional steps to be taken upon death to establish validity, which will incur additional expense. If this is not possible, an estate will be distributed in accordance with the laws of intestacy (ie as if a will had not been made).
3. Lack of flexibility. A will should be sufficiently flexible to cope with any change of circumstances, both happy and sad (such as the birth of a grandchild or the unexpected death of a son or daughter). For example, if an adult child predeceases a parent, should his or her share in the parent’s estate, pass to the grandchildren or to the other children? It is easy for a branch of the family to be inadvertently excluded in will-drafting packages, which rarely provide this flexibility.
4. Unclear instructions. The terms of a self-written will can easily lead to confusion – eg does “£5,000 to Miles and Anne” mean £5,000 each or £2,500 each? Do assets left to “my children” include or exclude step-children? These types of confusion can easily lead to expensive legal disputes.
5. Excluding assets. It is imperative that a will provides for the distribution of the whole of an estate, otherwise the laws of intestacy (see above) will govern who is entitled to these assets upon death. This may not reflect the deceased’s wishes and will increase the costs of administration.
6. Family resentment. Today, many family situations involve second (or more) spouses, stepchildren etc and such complex circumstances require to be carefully addressed. A will-drafting package is unlikely to provide this level of sophistication, potentially leading to some relatives being included or excluded without the author realising it.
7. Inadvertent cancellation. To cancel any previous will, a new will has to be carefully drafted. Therefore using a self-written will to update wishes – on death – may not achieve this aim.
8. Executors and guardians. Self-written wills often fail to appoint executors (those legally responsible for administering the estate) and guardians (those legally responsible for looking after the children). In that case, the appointments have to be made by the court, which means that the final choice is not made by the deceased and incurs additional cost for his/ her survivors.
9. Inheritance tax. This has become a concern for many, particularly in light of rising property prices, while the tax system is also becoming increasingly complex, especially in relation to trusts. It is unlikely that wills which are self-prepared or from off-the-shelf packages can incorporate all of the available forms of inheritance tax mitigation.
10. No way back. A will comes into effect on death. Accordingly, any flaws are only likely to be discovered on death, by which time – for obvious reasons – it is generally too late for them to be corrected.
Andrew Paterson is a partner with Murray Beith Murray