In 2023, more than 5.7 million people purchased online wills, but only 170,000 checked the qualifications of the will writer. Incorrectly written or unclear wills can slow down the already strained probate system. Over recent years, the system has dramatically slowed down following the transition to an online probate portal service, which was designed to streamline the process. Ives & Co, leading solicitors serving Nottingham and Kent, can assist with wills and probate.
The formalities required for a valid will are set out in Section 9 of the Wills Act 1837. A will must be in writing, signed by the testator (the person making the will) or signed on behalf of the testator in their presence and by their direction. Additionally, the testator’s signature (or acknowledgment) must be made in the presence of two witnesses, present at the same time.
While this sounds relatively straightforward, problems frequently arise with wills that are signed or witnessed incorrectly, especially with ‘home-made’ wills or those written by unregulated will providers. Such wills can be rejected by the Probate Registry for not correctly following the formalities, leading to delays in obtaining a Grant of Probate. The Probate Registry may require an Affidavit of Execution, a legal document signed by one or more witnesses to verify that they witnessed the testator signing their will. Tracking down witnesses can take time, and if the will was prepared many years ago, the witness may no longer be alive, further complicating matters.
If these issues cannot be rectified, a will may be deemed invalid. In such cases, the estate will be distributed according to the intestacy rules, which only recognise married or civil partners, children, and other close relatives as heirs. This might not reflect the testator’s wishes, especially as intestacy rules do not recognise unmarried cohabiting partners.
Obtaining a professionally drafted will by a legal professional ensures that the legal formalities are correctly handled. Legal professionals meet with clients to oversee the signing process, include an ‘attestation clause’ confirming that the testator has signed the will in the presence of two witnesses, and send clear instructions if unable to meet in person. This helps to avoid issues that come with having an invalid will.
Moreover, individuals preparing a ‘home-made’ will or using unregulated will providers miss out on quality legal advice. Legal professionals can offer tailored advice, suggesting trust vehicles in wills when appropriate, particularly if there are children from a previous marriage or concerns about asset protection for the next generation. Inheritance tax is also a key consideration, and legal professionals ensure wills are structured in an inheritance tax-efficient manner, tailored to an individual’s specific circumstances.
In summary, while DIY wills might seem convenient, they carry significant risks. Engaging a legal professional for will preparation ensures compliance with legal formalities, offers valuable advice, and ultimately provides peace of mind that your wishes will be honoured.
