COVID-19 Q&A | Sintons | Wills, Trusts & Estates
During these unprecedented times, where the situation is changing on a daily basis, we are aware that individuals and business owners will have many questions and uncertainties about how these developments impact on them.
Here, through a series of Q&A with expert lawyers from across our firm, Sintons hopes to be able to answer some of those pressing questions, and provide some certainty and clarity for people who are unsure how to proceed.
Q – Do I need to involve a law firm in making my will? It seems like an additional level of delay to the process in the current climate. Will it still be legally binding if I do it myself and have my neighbours or members of my household witness it?
A – Handwritten wills are known as “holographic” wills. Holographic wills can be valid, provided that they fulfill certain legal requirements. However, there are huge risks in making your will at home, mainly that your will could be challenged on a number of legal grounds after death. Given that your will is one of the most important documents you will ever sign, it is crucial to seek professional advice to ensure that its contents and execution are correct.
Firstly, if you choose to write your own will, there is a danger that your intentions may not be made clear. Legal professionals draft wills carefully to ensure that on your death, there is no confusion or uncertainty as to who should benefit from your estate and on what terms. By way of an example, you may think that leaving a gift of your jewellery to your grandchildren is a simple gift for a lay person to draft. However, if the gift is not carefully worded it could cause a huge rift in the family. Do you intend for your children to pick items of jewellery or are the items simply to be divided according to value? What if there is a disagreement between the grandchildren as to who gets what? Do you intend for your watches to be included in the definition of jewellery or are these intended for somebody else? This demonstrates that it is really important to seek the advice of an expert when making your will, to ensure that no ambiguity arises.
Secondly, should you choose to make your will at home there is a risk that it may not be signed and witnessed correctly. Under the Wills Act 1837, a will must be in writing and be signed in the presence of two or more witnesses at the same time. The witnesses must have clear sight of you signing your will and cannot, for example, witness your signature on different days or at different times. Asking members of your household to witness the will for you is certainly inadvisable, because any gift to them under the will would become void. There is also an increased risk that the will could be challenged on the basis of fraud. Legal professionals can provide you with clear guidance on how your will can be validly signed and witnessed, particularly in light of the current government guidance regarding social distancing.
Thirdly, a homemade will is more likely to be challenged by disappointed family members who you may decide to leave out of your will or leave a smaller amount than they might be expecting. In order for a will to be valid, a you must have the requisite mental capacity to make a will, be free of undue influence (pressure or fraud) and have sufficient knowledge and approval of its contents. Completing a will at home increases the risk of family members exerting pressure on you to sign a will that you did not intend to make. Lawyers are alert to issues of fraud and capacity, and can ensure that any risks of a will being challenged are at an absolute minimum. At Sintons all the Wills, Trusts & Probate Team are members of professional bodies, such as STEP or SFE, and so they have a wealth of experience in advising clients on their wills and issues surrounding their legality.
Finally, if you are worried about the delays caused by making a professional will, we work hard to ensure that our clients’ affairs are sorted as quickly and efficiently as possible. Should you inform us that you need a will making urgently, due to ill health or any other reason, we will do our upmost to ensure that we can assist you.
In summary, homemade wills, whilst valid, are more likely to cause upset and costs to your family after your death. Asking a professional to draft your will ensures that you have the peace of mind that, on your death, your affairs will be managed how you would want them to be.