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What are the dangers of DIY wills?

View profile for Molly Sutherland
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A recent case has emphasised the potential issues and pitfalls that can arise from homemade DIY wills as there are no lawyers involved in the Will drafting process.

In the case of Henrietta Ingram & Anor v Simon Timothy Abraham & Anor, Joanne Abraham passed away in 2021. She left behind two children, Henrietta and Tom and two brothers, Simon and Nicholas.

Ms Abrahams made a Will in 2008 which left her estate to be divided equally between Henrietta and Tom. Ms Abrahams later amended her Will in 2019. The amended Will was made using an online Will template and was drafted by Simon (the first Defendant and her brother), leaving her residuary estate wholly to himself. The Will was prepared with no professional guidance or direction from a solicitor and Ms Abrahams did not seek any legal advice before or after executing her amended Will. After her death, the children disputed her amended Will on the basis that they believed the Will did not align with her wishes and intentions.

A DIY Will can end up costing you more than the costs of using a Solicitor

The Court found that Ms Abrahams amended her Will and had provided her entire estate to Simon with the sole intention that “Simon would inherit her estate to distribute it as per her orally and repeatedly expressed wishes to divide it fairly” between (her children) Tom and Henrietta. The Court found that Mrs Abrahams entrusted Simon to “look after Tom and Henrietta rather than finalising things in the Will”. The amended Will did not provide for her children and provided a gift of her estate outright to Simon directly. The Judge concluded that this was not the intentions of Mrs Abrahams and she had not understood the effect of the amended Will and her brother, Simon had contributed to that misunderstanding. This led to lengthy expensive and emotional litigation which would have been entirely avoidable should a solicitor have been consulted.

A DIY Will could be deemed invalid by a Court

If Ms Abrahams had visited a solicitor, the solicitor would have likely suggested a discretionary trust – a flexible arrangement that gives the Trustees both discretion and control over how best to use the trust assets for the benefit of the beneficiaries. Because no solicitor was involved in the drafting process, the Court found that Ms Abrahams did not understand what was in her amended Will when she signed it, nor did she understand what its effect would be and therefore the Will was found invalid therefore finding that the 2008 Will should be admitted to probate. This case is another very good example of why it is best to instruct a solicitor to draft your Will and why online templates are risky!

In this article by This is Money, their investigation found "a string of potential pitfalls with popular DIY will packs and online services" and repported that "The DIY wills were said to be riddled with risk, while the online option came with extra charges that could cost your estate thousands of pounds after your death".

What happens when a Will is deemed invalid?

If a Will is deemed invalid then, if an earlier and valid Will exists, a Judge may choose to honour it. A person's 'most recent and valid Will' however may still be subject to challenge.

If no earlier Will exists then the testator (the person who has passed away) is treated as if they died intestate, and the Estate will then be distributed in accordance with the Rules of Intestacy.

What's the difference between a Fixed Trust and a Discretionary Trust?

A Fixed Trust allows the Settlor (person creating the Trust) to set out the interests of each beneficiary's share Trust assets (this might be a deceased’s Estate). The Trustees must then distribute the Trust assets in accordance with the terms of the Fixed Trust. In contrast, if the Trust is a Discretionary Trust, then the Trustees have discretion as to how they distribute the assets within the Trust between the beneficiaries. When preparing a Discretionary Trust, we would usually recommend that the person setting up the Trust drafts a Letter of Wishes to set out what their wishes are in respect of the Trust assets, so that the Trustees have some guidance.

Is a DIY Will Valid?

Yes a DIY Will could potentially can be valid, as long as it meets all of the requirements of Section 9 Wills Act 1837. However, whilst there is no legal need for a Will to be drawn up or witnessed by a solicitor, a solicitor will have the experience and skills to ensure that your Will is properly written and executed. A poorly written Will could result in it being invalid and can lead to significant costs should the validity of the Will be challenged after you die.

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About Molly Sutherland 

Molly joined Thornton Jones Solicitors in March 2023 after completing her training contract at Levi’s Solicitors. At time of writing, she is awaiting her Legal Practice Course results which will certify her as a fully qualified solicitor.

Molly studied her Law Degree and LPC at Leeds Beckett and an LLM Masters (Master of Laws) at Leeds University. She joins our Private Client team here at Thornton Jones and brings her experience of working in Private Client and Litigation departments since 2018.

Outside of work Molly admits to her free time being taken up by her Dachshund puppy who causes lots of trouble and is a travelling partner (almost) wherever molly goes. When not tending to her puppy’s needs, Molly enjoys spending time with friends and family.

#ContentiousProbate #PowersOfAttorney #LPA #MakeAWill #Solicitors #LeedsSolicitors #WakefieldSolicitors #YorkshireSolicitors #Garforth #Wakefield #SherburnInElmet #Ossett #Mapplewell #Leeds ...  
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The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control. 

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