It can be very tempting to avoid the cost of paying a professional to draft a will. However, preparing a “homemade” will can cause all sorts of difficulties. Mark Terrar an associate solicitor in our Contentious Probate Team, discusses the issues of a ‘homemade’ will and the implications that could arise.
There is the risk that the document will be drafted in ignorance of the formalities required by section 9 of the Wills Act 1837 or the will itself may contain drafting errors. A failure to comply with Section 9 will render the will automatically invalid. Drafting errors can cause confusion and may result in an application to Court becoming necessary to clarify what the will actually means.
One of the four grounds that can be used to challenge a will is that the person preparing the will lacked knowledge and approval. A challenge to a homemade will on this ground will often cause great difficulty to those seeking to defend the validity of the will.
A claim for want of knowledge and approval will arise when there are apparent suspicious circumstances surrounding the creation of the will. Suspicious circumstances will include:-
- The fact that the major beneficiary was present or even participated in the preparation of the homemade will;
- A radical departure from the content of a previous will;
- The will contains mistakes or is written in a style unusual for the testator;
- The witnesses to the will were not independent;
- A lack of professional involvement;
- Where there is evidence that a beneficiary has acted suspiciously or in a clandestine fashion.
This is not an exhaustive list but gives a flavour of the sort of issues that can arise. Mark Terrar, an associate solicitor in the contentious probate team explains:-
“Defending a challenge to a homemade will, which is brought on the grounds of knowledge and approval is often difficult. The problem is the lack of independent, third party evidence. I was recently involved in case acting for the only son of a testator where the son had actively helped his father prepare a new will. They downloaded a form from the internet and prepared it together. The new will cut out a granddaughter who was the 50% beneficiary of a previous will made about 10 years earlier. There was clear and cogent evidence of the reasons why a new will was prepared. The problem, however, was that this evidence mainly came from the son and his wife. They were honest and clear but the self-serving nature of their evidence could not be overlooked. Once a challenge was brought by the granddaughter, even though it was spurious, it carried with it a significant nuisance factor. The various suspicious circumstances that she could highlight meant that the burden of proving the will’s validity shifted on to my client. That changes the complexion of the case entirely.”
The fact that a will is homemade does not of itself render it invalid. What it does mean is that defending any challenge is likely to be much more difficult to prove. One of the key advantages in involving a professional in the will making process, aside from receiving correct advice as to its content and how to sign it, is that there will be independent, third party evidence of the way in which the will was created.
Mark goes on to explain:-
“My client wishes with the benefit of hindsight that his dad had instructed a solicitor to prepare his will and that he had not been involved in its’ preparation. The cost of preparing the will would have been minimal compared to the significant sums that were incurred in defending the challenge. A challenge which would otherwise have been swiftly defeated had more credence to it because of the failure to involve a professional.”
A recent High Court decision, RNIB & Others v Turner  EWHC 3301 (Ch) is an example of a homemade will that was ruled to be invalid by the Court, due to a failure to comply with Section 9. The Court in this case held that the elderly lady who prepared the will did have knowledge and approval; it was the failure to comply with the formalities that caused the issue on this occasion.
At the Wilkes Partnership, we have one of the leading Private Client teams specialising in Wills, probate and contentious probate in the region, acting for nationally recognised, leading individuals. For further information, contact Mark Terrar on 0121 233 4333.