There are a number of rules in place when making wills, which if not met can make the will invalid. Although these rules are intended to safeguard the will maker, by taking steps to ensure the will maker is not being coerced or that the will is indeed signed by the maker and has not been falsely drawn up by a potential beneficiary, they do have certain practical drawbacks.
Since the Covid-19 pandemic, there has been a surge in people wanting to draw up wills, or make amendments to their existing will to bring it up to date with their current circumstances. Due to the many practical considerations, some people may have been tempted to make DIY wills, not realising that without following the strict rules, their will may well be deemed invalid.
Here we look at these rules and what would happen in the event of a will being deemed invalid.
For example, the law states that wills must be signed by the will maker in the presence of two witnesses, who must also sign the will. All parties must be present while the act of signing and witnessing of the will takes place, and all must have an uninterrupted line of sight.
Another rule is that the witnesses cannot be a spouse or one of the beneficiaries in the will.
Furthermore, at the time of making the will, you should have ‘testamentary capacity’ – ie. you must be able to understand the full consequences of making the will.
If drawn up or amended without adherence to any of these legal requirements, the will could be contested after the will maker dies.
If a will is deemed invalid, in the eyes of the law, it is as if the will never existed. Where the deceased had previously made a will, this older version (which may no longer be relevant) will likely be treated as the ‘last will and testament’. However, if no previous will can be found, the estate in question is treated as if the person died intestate, so the assets will be distributed as per the rules of intestacy.
Whilst many people may think their family or partner would still stand to inherit in the event of dying intestate, this belief carries a real risk. Current intestacy rules do not cater for modern family structures such as cohabiting couples or families with step parents or step children, for example.
This is perhaps the biggest danger of DIY wills; that people who believe that they have their affairs in order and have the peace of mind that comes with knowing their family or loved ones will benefit from their estate when they die, might actually not have a legal document in place at all.
Although making a will whilst self-isolating, during a period of lockdown or generally whilst adhering to social distancing can be challenging. However, we would always advise that seeking legal advice from a specialist private client solicitor is the preferable route to either drafting or making amendments to a will.
The team at O’Donnell Solicitors are making the process of will drafting easier for clients to access by providing video call facility for clients to undertake the initial stages of the process. The majority of the work to draft the will can then be done remotely, with arrangements then made for the appropriate signatures to be obtained in the correct manner whilst also following social distancing.
Having introduced a number of features to our office building to ensure safe social distancing, including Perspex screens and 2 metre floor markers, we are also now starting to see clients in the office again. As a result, we are able to offer appointments in person, as well as over the phone or by video.
For more information or to discuss the process further with us, please contact Rebecca on 01457 761320 or email Rebecca@odonnellsolicitors.co.uk.
Rebecca O’Donnell is Head of Private Client at O’Donnell Solicitors.
