Home-Made Wills: Not the Way to Go!

Due to a lack of such knowledge, what apparently purports to be a valid will may well turn out to be anything but one, with unintended consequences both tax and non-tax.

Statute (ie Wills Act 1837, as subsequently modified) and case law lays down a strict set of rules which a valid will must satisfy, failing which the will will be held to be invalid.

These rules are, broadly, as follows:

• the will must be in writing and signed by the testator;

• the testator must have intended by his signature to give effect to the will;

• the testator’s signature must be made by the testator in the presence of two or more witnesses at the same time; and

• each witness must sign the will in the presence of the testator (albeit not necessarily in the presence of the other witness(es)).

The testator must be mentally capable of making a will; must intend to make a will; must not have made it under undue influence from another person; and must know and approve the will’s contents.

These complex requirements, which are generally not readily known or understood by the layman, mean that the home-made will maker is much more likely to make an invalid will than his professional counterpart.

The classic question often raised by the layman is how will anyone know if all the formalities etc have been strictly observed or not. This is readily answered by pointing out that, sadly, a person’s death, often far from bringing a family closer together, has a habit of creating division and heartache when one or more beneficiaries (or indeed non-beneficiaries) feel aggrieved as to the provision made for him/her under the deceased’s will and a decision to challenge it is launched. The consequence is that every aspect of the will making process falls under the microscope and any failings to observe the formalities will be highlighted.

The basis for challenge usually rests upon one or more of the following: 

• that the requisite execution formalities were not correctly followed;

• that the testator lacked capacity to execute the will (ie was mentally incompetent); 

• that the testator was subject to undue influence; or

• simple fraud.

Classic scenarios which may provide justification for a challenge as to the will’s validity would include:

• where a son, for example, prepares a will for his mother to sign when, at the time of her signing the will, she does not really understand what she is doing (mental incapacity challenge);

• where a testator signs his will in front of only one witness (not two) getting another witness to sign at some later time (invalid execution); 

• where a daughter who feels that her mum’s will doesn’t leave her what the daughter believes is fair gets her mum to execute another will more in the daughter’s favour thus revoking the earlier will (undue influence); and

• tricking an aged reluctant parent to sign a will on the basis that the parent is signing something other than a will (fraud).

Other things being equal, the likelihood of success in challenging the validity of a will is significantly higher in the case of home-made versus professionally prepared wills.

A very recent sad case illustrating the costs and trauma of family disputes over a will (albeit not a home-made will) is Hawes v Burgess (2013) which was widely reported in the press (see: http://www.telegraph.co.uk/news/9895488/Siblings-dispute-over-inheritance-leaves-them-with-nothing.html). Indeed the circumstances were such as to cause the judge to comment: 

“Even worse ……. are the enduring human consequences for a once "close knit and loving family"
…… The rift in the family is likely to be beyond repair. It is also likely that any assets in the estate will have been eaten up by this litigation. Both of these matters are the unfortunate consequences of this litigation".

In a much earlier case involving a home-made will a judge commented:

“ an outstanding example of the toast of the Chancery Bar, ‘Here’s to the man who makes his own will’. He plainly did not…….brood on the rules of construction in his leisure time”.

A will is often a vital tax planning tool in the tax advisor’s armoury. In the event that a will is declared invalid the tax consequences are likely to be not only different from those envisaged, but much worse. Paying for professional advice with respect to a tax saving strategy on death and then seeking to save fees by executing a home-made will may be foolhardy.

If there is a point to make, it is that home-made wills should be avoided at all costs.