It is thought that the financial and personal pressures resulting from the ongoing pandemic will mean that the number of cases involving challenges to a Will is set to rise. Disappointed beneficiaries may be left seeking to argue that a Will is invalid because the individual was not capable of writing a Will at the relevant time, or that he/she was inappropriately influenced by a potential beneficiary of the Will.
The risk of a challenge is much greater when the Will in question has not been professionally prepared by a solicitor. Tempting as it may be to try and save on time and expense by preparing a homemade Will, this can often lead to additional stress, cost and delay for loved ones left behind.
What are the dangers of a DIY Will?
Handwritten or “homemade” Wills are a minefield and have resulted in many disputes over the years. In the majority of cases, problems are not discovered until after the testator has died and it is too late for them to be fixed. Common problems include:
Mistakes in drafting – Wills need to be carefully drafted and it is easy for mistakes to be made, for example in the identification of a beneficiary, in the description of assets to be given away or the incorrect use of legal terminology;
The imposition of unenforceable conditions – it is common for testators to attempt to impose conditions on a bequest. If these are unclear or open to interpretation there is a risk that the testator’s wishes cannot be implemented;
Creating unintended tax consequences – the Inheritance Tax legislation is notoriously complex and it is common for homemade Wills to inadvertently trigger tax charges which could have been avoided or mitigated by a carefully drafted Will; and
Not signing the Will properly – to be valid in Scots law, a Will needs to meet strict signature and witness requirements which can often be overlooked.
Further, there is the risk that a handwritten Will is later challenged in the courts on the basis that the document was signed at a time when the individual did not have the capacity to make decisions about his/her assets or that the individual has been influenced by a beneficiary. Although only a handful of cases actually end up in Court, solicitors are often asked to advise disappointed beneficiaries on challenging a Will and it can be very expensive to sort out, as well as distressing to those involved.
How can involving a solicitor help?
A well drafted Will which has been prepared by a solicitor is notoriously difficult to contest successfully.
Instructions for a Will are ideally taken by a solicitor during a face-to-face meeting (physically or virtually) with the individual. During the meeting, in addition to taking instructions from you as to how you wish your estate to be dealt with, the solicitor has the opportunity to assess your capacity to put in place a Will as well as consider whether there is anyone exerting pressure on you. The Will might then be signed at a subsequent meeting between you and your solicitor, giving further opportunity for the solicitor to verify the instructions and confirm capacity. Your solicitor will also check that the Will has been signed and witnessed correctly.
Your solicitor will keep a detailed note of what was discussed and of the circumstances surrounding the meeting, which can be used as evidence in court should your Will ever be challenged.
How can I use a solicitor during Covid-19 restrictions?
In light of the restrictions imposed as a result of Covid-19, the Law Society has confirmed that solicitors can hold these meetings virtually via Zoom, FaceTime or similar. We have conducted numerous such meetings over the last 12 months with both new and existing clients, and this method of taking Will instructions has proven to work very well. Solicitors can also remotely witness your signature on your Will during a video call which is helpful if it is not possible to source an independent witness who can be physically present when you are signing the document.
What if I am unable to attend a virtual meeting?
Of course, not everyone has access to video conferencing technology. In exceptional circumstances, we are able to conduct socially distanced face-to-face meetings in accordance with the guidelines in order to take your instructions and, if necessary, to witness the new Will. Video conferencing is of course to be preferred for now, but do not hesitate to contact us to discuss your requirements if this is not an option for you.
In short, to avoid future complications, it’s best to prepare a Will with the help of a solicitor. If you are considering preparing a Will, please get in touch.
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