DIY vs professional will writing: what you should consider
In order for a will to be valid and legally binding, it needs to be properly signed and witnessed. With will templates available from high street stores for as little as £10, it’s no wonder many are going down the DIY route.
The cost of drawing up a will with a professional varies dramatically depending on your requirements and where you go, but can be around £80 plus VAT, or for more complex needs and advice it can be around £750 plus VAT.
But Matthew Evans, a partner at law firm Hugh James, says the number of disputes heard in the High Court has increased by nearly 60% between 2013 and 2015, and adds many homemade wills “often raise more questions regarding its validity and opens up potential grounds for challenge”.
So should you opt for a DIY will or a professionally drafted service?
The Money Advice Service (MAS) says in general, you should only write your own will if your wishes are very simple.
It gives the example of a married couple who want to leave everything to their husband or wife, and if they die before you, and you want to leave everything to your children.
If you have more complicated affairs, such as having step-children, or you’re unmarried, you’re trying to reduce your inheritance tax bill, own property abroad, or have foreign investments or bank accounts, MAS says you shouldn’t write your own will.
Below, Evans explains the benefits of writing a professional versus a DIY will.
The advantages of a professionally drawn up will
1) More likely to meet the necessary legal formalities to be valid
For a will in England and Wales to be valid it must usually comply with the formalities set out in the Wills Act. These specify that a will must be in writing, must be signed by the testator (the person making the will), or by some other person in their presence and by their direction, must be clear that it is intended to be a will, and the signature must be made or acknowledged in the presence of two or more witnesses present at the same time. Further, each witness must sign the will in the presence of the testator.
2) Tailored to your personal requirements
With regular changes to taxation, reliefs and the law generally, a professionally drawn up will should ensure your estate is passed to your loved ones in the most tax efficient way, in line with the laws and available mechanisms to properly ring fence your assets.
3) Clear, unambiguous and with no loose ends
One common problem which Hugh James encounter with homemade wills is that the language used is often subjective, ambiguous or unclear. For instance, what does a clause saying “I give my personal estate to my children” mean? Does it include step-children, foster children etc? How about “personal estate”? Does that include your home? Strictly speaking it would not and so, failing a properly drawn up clause dealing with the home, it would fall outside of the will and pass in accordance with strict rules set by statute.
Someone writing a homemade will could try and fail to use “legalese” or legal jargon in an attempt to make the will authoritative. While this can work, more often than not it simply causes confusion which may need to be resolved by way of court proceedings.
A professionally drafted will should address all of these issues and ensure that your wishes are clear, unambiguous and there are no loose ends.
4) Less likely to be open to challenge
Any will may be open to challenge where there are concerns the person making it lacked mental capacity, did not know of or approve the content of the will, were subjected to undue influence, was procured by fraud, or any part of it was forged. A homemade will often raises more questions regarding its validity and opens up potential grounds for challenge.
For instance, was it written by the testator or someone else? Have any pages been ‘swapped’ or replaced after it has been signed, for instance following the testator’s death?
A professionally drawn up will, with detailed file notes confirming the circumstances surrounding the preparation and execution of the will and, if necessary, an assessment regarding capacity, is more likely to address such concerns.
5) Professional expertise, regulation and insurance
In the event something does go wrong during or after the will writing process, if that will has been drawn up by a solicitor there may be recourse available, including compensation for any loss caused as a result.
Solicitors are regulated by the Solicitors Regulation Authority and are required to have professional indemnity insurance which protects the consumer.
Many professional will writers have professional accreditations which require them to keep up-to- date with the law and changes in practise regarding wills.
The advantages of a homemade will
1) Saves money
Aside from the costs of the paper, ink and your time, the process of drawing up a will can otherwise be free. A will writing pack can be purchased from many stationers or online for about £20, so with the most simple of estates this can work effectively. This is often the big appeal for many people looking to deal with what should happen to their estate on death without incurring the costs of instructing a professional.
2) Artistic freedom
Who needs boring old 50gsm, finest quality, watermarked paper? With a homemade will, you are no longer bound by such shackles.
Want to write your will on an egg shell? You can if you wish and just such a will was held to be valid in the 1903 case of Whiting v. Turner.
Provided the will is legible, in writing and meets the strict formalities the Wills Act you can pretty much write it on anything. Just make sure that it is written in a single format i.e. ink, rather than ink and pencil. In the latter case, any words written in pencil are presumed to be for information only and not binding.
3) Where time is of the essence
Imagine a person is lying on their death bed and after avoiding writing up a will, they now decide to address it. A homemade will can ensure their wishes are reflected.
In this instance, and in case of any disgruntled beneficiaries raising concerns about capacity or knowledge and approval, the will should be as clear as possible, perhaps with an accompanying statement of reasons. It also needs to be witnessed by at least one medical practitioner, along with a second witness who can confirm the person had capacity and that the will was read out to them.
See YourMoney.com’s The common will-making mistakes you may have made.
Dealing with the issue of your estate and who should benefit from it is a very personal matter and one which many people may not feel comfortable talking to a solicitor about. A DIY will can avoid any potential awkwardness.
5) May encourage more people to make wills
Without a will, a person’s estate in England and Wales passes in accordance with inflexible rules set out by statute. That can, in certain circumstances, lead to the estate passing to the Crown.
Recent statistics from Citizens Advice suggest that queries about people dying without a will doubled in the past five years and the publicity around this may encourage more people to deal with the question of what happens to their estates on death and to make a homemade will.