October 6, 2023

DIY Wills – The risks that could cost you more than you save

As recently reported in Henrietta Ingram & Anor v Simon Timothy Abraham & Anor 2023, not seeking proper legal advice when drawing up a Will can seem initially cost-effective. However, in the long run, this decision can lead to catastrophic implications in dealing with your estate.

This case involved a 58-year-old Jo Abraham and her two adult children, Henrietta and Tom.

Following Jo’s death from cancer in in February 2021, a homemade Will based on a template off the internet, and dated 2019, was submitted to probate. However, in 2008 Jo had previously made a Will which provided for a 50/50 split between her two children (then aged 12 and 22).

Evidence was put to the court that Jo intended her estate to be divided equally between the children but should take into account lifetime gifting (which was unequal by around £70,000). The 2019 Will appointed her brother Simon as executor and trustee, leaving him her entire estate exclusively. She had also orally instructed Simon on what she wanted him to do before she died. Simon had helped Jo prepare this Will.

The Judge considered the lengthy evidence (from friends and family) and found what Jo wanted to achieve was to secure the benefit of her estate for her children, apportioned to reflect their life-time gifts. That benefit and apportionment was then to be entrusted to Simon to implement.

It was clear that the 2019 Will did not achieve that. Simon also failed to discharge the burden of proof to establish that Jo, when she signed the 2019 Will, understood:

(a) what was in the 2019 Will when she signed it; and

(b) (more emphatically) what its effect would be.

She thought that Simon would inherit her estate to distribute it as per her orally, and repeatedly expressed wishes, to divide it fairly between Tom and Henrietta.

What Simon actually tried to do was pass Jo’s book collection to his wife Hilary, and then take all the rest of the estate for himself. Simon did not give any of Jo’s estate to her two children.

On what grounds can you challenge a Will?

Points for the court to consider in this case were Jo’s mental capacity to make the Will, her knowledge and approval of it, and the complexity of her family dynamics, which were all important factors. The people involved all had a vested interest in this case, and their own thoughts on Jo’s intentions. In such cases like this, where the key person has died and can no longer give evidence, there is a glaring conflict of interest that could impact the judge’s decision.

If a lawyer had been involved in advising Jo, they could pick through the facts, without bias, and suggest the best drafting to achieve her wishes and give their professional guidance on knowledge and approval. This would ensure that Jo knew the effect of what she was signing and, if prudent, to seek medical opinion to confirm this.

When dealing with the entirety of your assets after you have died, it is worth taking the time to seek professional advice to ensure your wishes are interpreted into a legal framework which will be effective on your death. In our opinion, the cost of getting a Will professionally drafted, executed correctly, to ensure your intended wishes are carried out is priceless.

Here in the Judge’s decision, the court did not permit the 2019 Will to be followed and ordered that the 2008 Will passing the estate to Jo’s two children be followed instead.

Key considerations with DIY Wills

As long as the Will itself and its execution (signing) complies with the Wills Act 1837, they shall be valid. However, although apparently valid on the face of the document, and passed through Probate, they can be challenged on the following grounds:

  1. ‘Want of due execution’ being that the Will wasn’t properly signed (i.e. both witnesses were not present at the time the testator signed their Will)
  2. ‘Want of knowledge and approval’ being that the person did know or understand what the effect of the provisions in the Will were
  3. ‘Undue influence’ being where a person has been coerced into making a Will that they did not wish to make. Undue influence may can take many forms including physical force and mental pressure.
  4. ‘Fraudulent calumny’ being the person was convinced by untrue comments made deliberately by one beneficiary about another and which caused the person to change their Will to reduce what they left to that beneficiary, or to cut them out completely.
  5. Fraud or forgery
  6. Lack of testamentary capacity being that the person must have the mental ability to understand what they’re doing, and the impact that it will have on their estate and anyone who might inherit. When someone has Dementia or other illnesses, they may not have the level of required mental capacity to make a Will.
  7. Error or mistake in the Will – If there may be a mistake or error in the Will, as a result of a clerical error or a failure to understand the deceased’s instructions, which means that the Will fails to carry out the deceased’s intention then a claim under section 20 of the Administration of Justice Act 1982 for rectification (or correction) of the Will is possible.
  8. If the Will is valid, but someone feels that they’ve been left out, treated unfairly or have not been properly provided for by a family member or someone they depended upon, they may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision.

Can I challenge a Will without a solicitor?

There is no legal requirement for a solicitor to be instructed. However, if you look at any of the court judgments you will see how complex and lengthy the process can get. Without proper legal advice, it may be tricky to present your case correctly to the court.