Frequently, Fosters Solicitors LLP come across defective Wills prepared by other Will writers (professional or lay) that are either defective due to clerical errors on the face of the Wills themselves, or due to a failure to carry out essential background checks and take appropriate action.
Only recently our Wills, Trusts & Probate department saw a client who had prepared a "do-it-yourself" Will that had not been executed correctly. The client's signature had only been witnessed by one witness, instead of by the requisite two, which meant that it failed to comply with the requirements for a valid Will as set out in s.9 Wills Act 1837. As the Will was effectively invalid, in the event of his death, the client's estate would have passed in accordance with the Rules of Intestacy and their wishes would not have been carried out. This would have been particularly problematic as the client intended to leave their estate to various charities and individuals and not their spouse or direct descendants, who would have been entitled to their estate had the Rules of Intestacy applied.
Earlier in the week, our Wills, Trusts & Probate department were instructed to review a pair of defective Wills for a couple who had attempted to place their respective 50% shares of their main home into a Will trust for their children. The husband had since died and the wife was facing residential care. The effect of the trust would have been to protect the husbands' 50% share of the home from care fees for the wife in the event that the home had to be forcibly sold to cover these. Unfortunately, it transpired that the house was not, in fact, owned in the correct way for the Will trust to be effective. This meant that the Will trust had failed upon the husband's death, leaving the entire house vulnerable to pay for the wife's care fees. Sadly the children face not inheriting due to the Will writer's failure to check and amend the ownership of the main home.
"Do-it-yourself" Wills can create other problems; not simply with their validity but also with the potential scope for abuse. For example "Do-it-yourself" Will writing services do not assess the Testator's mental capacity or check whether they have been unduly influence to create the Will. Therefore it is possible that a Testator may have been manipulated into making a Will, which is not necessarily in line with their wishes. "Do-it-yourself" Wills also do not check whether the Will has been forged by another party, as they do not supervise the signing of the Will. Whilst a lack of mental capacity, undue influence and forgery can invalidate a Will, without proper check to ensure these are not factors in the making of the Will, the Testator's estate can be vulnerable to claims from third parties. Claims to rectify or challenge a Will can be costly and, if court proceedings are issued, the legal costs are often taken from the Testator's estate, which can quickly diminish the value, leaving less for the beneficiaries ultimately.
The safest and best course of action is always to make a Will with a professional Will writer who has the correct training, qualifications and experience to prepare your Will. At Fosters Solicitors LLP, our Wills, Trusts & Probate lawyers will ensure that your Will is fully compliant with s.9 Wills Act 1837, but will also carry out the essential background checks, including assessing your mental capacity, checking for signs of undue influence and potential forgery, with potential claims and challenges at the forefront of their mind in the advice they offer. This will leave you with peace of mind, knowing that your final wishes will be carried out and your loved ones will be provided for.
We have offices in Norwich, Wymondham and Lowestoft, with late night appointments available on Thursdays in the Wymondham and Norwich offices. For more information, please call our Wills, Trust and Probate department on 01603 620508, or email the team using the website enquiry form, or email us.