Yes, it is possible for a homemade, handwritten will to be valid in England and Wales, so long as it has been properly drafted and complies with the law. However, there are potential downsides to drafting your own will.
If you are writing your own will without the assistance of a professional will writer, you must be aware of the legal requirements. Frequently, DIY wills are inadequately drafted, contain errors, or are improperly executed. Consequently, they are typically invalid or ineffectual after death.
Wills written by hand are referred to as holograph wills. A holograph Will must be executed according to the Wills Act of 1837, from a legal standpoint. This states that the will must be:
Signed by the testator (the person making the will) with the intention of it giving effect to their will in the presence of two witnesses, who each sign the will in the presence of the testator.
If the DIY will is not signed and witnessed correctly, it will not have been properly executed and will be invalid.
Expression of intention in a homemade will
The signing and witnessing of a homemade will is only half the problem. Another difficulty is determining whether a handwritten document is a person’s will or simply a signed document containing their beliefs. This issue has previously been litigated, and it was determined that a handwritten will is only valid if it contains a fixed, definitive, and deliberate expression of intent regarding the distribution of property upon death.
In addition, a person must possess “testamentary capacity” in order to create a will. This implies that they must completely comprehend their actions and their consequences. If there is any dispute about a person’s testamentary capacity at the time they drafted their will, the will can be contested. This risk is readily overlooked when a DIY will is created.
Avoiding ambiguity is essential.
The second issue with a do-it-yourself will is that precise terminology and language must be used to avoid ambiguity. Even if you make it abundantly clear that this handwritten document is your will and that it complies with the Wills Act, it must explicitly state your wishes and employ the proper terminology.
Here is a basic illustration. Stephen has three children and is sixty years old. His home at 27 Acacia Avenue, which is valued at £200,000, is his only valuable asset. He opts to draft his own will rather than seek professional counsel. He intends to bequeath the majority of his estate to his daughter Julie, to whom he is closest, and the remainder to his other two children. He prepares a DIY will, indicating that it is his will and including a statement to that effect.
“In the event of my death, I give my house at 27 Acacia Avenue to my daughter Julie.”
The document is then signed and witnessed in accordance with the Wills Act, and it is placed in his residence safe. Stephen’s health deteriorates over the next decade, necessitating a transfer closer to the family. He sells 27 Acacia Avenue and purchases 18 Warren Road, which is in close proximity to where his daughter Julie resides.
When Stephen dies, his heirs find his will. The provisions of the will cause contention among the children. Given that Stephen no longer possessed 28 Acacia Avenue at the time of his passing, Julie asserted that it was evidently her father’s wish for her to receive 18 Warren Road. In contrast, the other two children argue that Julie should receive nothing because he no longer owns 27 Acacia Avenue.
If time travel were possible, what do you believe Stephen would have desired? Should Julie inherit 19 Warren Road, or should she receive nothing from his estate? Given the circumstances, I believe it is reasonable to conclude that Stephen would have wanted Julie to inherit 18 Warren Road.
Unfortunately, the law would interpret the words in his will differently, and Julie would be disinherited. This places Julie in the unenviable position of having to either accept the loss of her inheritance or incur substantial legal fees by bringing the matter to court.
Then, what could Stephen have done differently when drafting his will to prevent this? Stephen would have likely been asked if he wanted the gift of 28 Acacia Avenue to Julie to be extended to include “any other principal residence I may own at the time of my death” if he had sought professional advice and discussed his intentions with a will-writing professional. If these fourteen words had been included in Stephen’s will, the entire dispute would have been resolved, and Julie would have inherited 18 Warren Road.
What happens if your homemade will is invalid?
If the validity of a do-it-yourself will is contested after death or if portions of the will are ambiguous, this can lead to protracted and costly legal disputes for the family. This could significantly reduce the estate’s value and the quantity of inheritance passed down.
If the will is found to be invalid in its entirety, the estate will be distributed in accordance with the prior will. Or, if there is no will, according to inheritance laws known as the norms of intestacy. These rules determine who has the right to administer the estate and who has the right to inherit its assets.
In accordance with the laws of intestate succession, a deceased person’s spouse, then their offspring, and so on, are given precedence over their other relatives. Certain family members, such as unmarried companions and stepchildren, are not acknowledged by these rules, so they may be ineligible for any benefits.
Get professional advice
These are just some of the many issues that can arise from handcrafted and handwritten wills. If you have any doubts and are intending to write your own will, we would always recommend consulting with a professional will-writing service. After death, a poorly formulated or improperly executed will may be deemed invalid or ineffective.
If you are not an expert in this area of law, writing a will on your own is hazardous. You will have peace of mind knowing that you are not inadvertently causing problems for your loved ones in the future if you receive the appropriate guidance.
