What is a Will?
A Will is a legally binding document which sets out a person’s wishes for the distribution of their assets, called their ‘estate’ after they die. This can include money, property, stocks and shares, possessions and digital assets. It can also detail their wishes for the care of any dependent children they have.
Why should I make a Will?
It is of vital importance to leave a Will if you wish to: decide on what happens to everything you own after you die; ensure your next of kin are provided for (and to determine a suitable age to inherit); and more importantly, organise suitable care for your children if the worst should happen.
Without one, your estate is subject to rules which dictate how your money, property and possessions should be distributed which may be against your wishes. For example, unmarried partners and partners who have not registered a civil partnership cannot inherit from each other unless there is a Will or jointly owned property.
It is also important to keep your Will up to date as circumstances change throughout your life, for example: a new partnership, marriage or divorce, additional children or new ownership of property.
To make simple amendments to your Will, a Codicil is needed. It is a legal document that works alongside your existing Will and outlines the alterations. It needs to be signed and witnessed in the same way as an original Will to be valid.
Can I write my own Will?
Since the Covid pandemic, there has been a spike in people writing their own Wills without the support of a solicitor. The effects of the pandemic caused many to consider their mortality spurring them on to get their affairs in order. As well as a time of existential contemplation, the pandemic did cause financial hardship for many, resulting in people looking for cheaper options and writing Wills themselves.
This is something which you are legally allowed to do. Technically, the following requirements are what it takes to make a Will valid. The Person making the Will must:
- be 18 or over
- make it voluntarily
- be of sound mind
- make the Will in writing
- sign it in the presence of two independent witnesses both of whom are over 18.
Provided the above points are met, you could write a Will on a scrap of paper and it could still stand up legally.
The legal framework for making a Will remains largely unchanged since the Wills Act 1837. However, a recent amendment introduced as a result of the Covid pandemic provided a revised definition for the word “presence” of a witness to include presence by means of videoconference. This change is applicable to Wills made between 31 January 2020 and before 31 January 2024.
This temporary change has made it easier for individuals to coordinate the process of creating their own Will without assistance. Although people still require two adult witnesses for their Will to be valid, they are not required to meet in the same room and instead it is possible to conduct a signing via a video conferencing platform, like Zoom. However, it is best practice to use this option as a last resort.
Why should I use a Solicitor?
Though using a solicitor is not a legal requirement for a Will to be valid, it is generally advisable to use a solicitor or qualified legal professional to advise on the making of a Will and the signing and witnessing of it. A solicitor Will make sure the Will is valid and reflects your precise wishes to take effect upon your death.
There are a number of pitfalls to making a homemade Will and the following are typical examples:
Writing a Will without signing and witnessing it properly
- Making changes to a Will which are invalid due to incorrect witnessing and signing of amendment Failing to identify or describe relevant assets leading to uncertainty or assets passing to the wrong people or simply being overlooked
- Failure to identify beneficiaries . E.g. referring to children who are step children. In law, ‘step children’ are NOT ‘children’ and would therefore not be included.
- Inadequately safeguarding against disputes or misunderstandings and failing to protect against potential allegations of mental incapacity or undue influence
- Failing to account for circumstantial changes which affect the way a Will is to be carried out such as a new marriage or divorce
- Errors can be costly to your intended beneficiaries who may not receive the full benefit as you intended particularly if the Will is challenged, leading to expensive legal fees which may be required to resolve the dispute. It was reported in August 2022 that attempts to block probate rose 37% in the two years prior in England and Wales, with the increase in DIY Wills during the pandemic cited as the cause.
The Language used and the meaning given to certain words in a Will is very important. A solicitor will understand legal definitions and is able to advise on the most appropriate words and phrases to achieve the wishes of the person making the Will and to oversee the signing of the Will. This will minimise the risk of an invalid Will or a claim against an estate.
It is particularly important to use a solicitor in more complex situations such as:
- A high value estate where Inheritance Tax needs to be considered
- Shared property with someone who is not your married or civil partner
- Where there are beneficiaries with competing interests. E.g. a second family where there are children from a first and second marriage
- A complex estate including foreign property or business assets
- In addition to DIY Wills, there are many Will writing services available which may provide guidance helping to avoid the pitfalls mentioned above.
It is, however, important to note that Will writers don’t need a qualification to be able to advertise and perform their services and are not regulated so may be vulnerable to the same mistakes as a DIY Will writer. Putting your Will in the hands of a Solicitor or a qualified legal professional is the safest option.
How Eric Robinsons Solicitors can help
Whether you require our Will writing services, or assistance with Lasting Powers of Attorney, our specialist solicitors are ready to help. At Eric Robinson, our team is made up of experienced lawyers who understand the sensitivity of creating a Will. We will ensure your Will is written, signed, and witnessed correctly so that your wishes will be respected upon your death.
Our Will writing service operates on a fixed fee basis because we recognise that costs are a key consideration.
If you want to find out more about the Will writing service we offer, call or contact us online or in person today. We are always willing to discuss your requirements by phone and we offer fixed fee services.
We have solicitors offices in Southampton, Hedge End, Chandlers Ford, Winchester, Lymington and Richmond-Upon-Thames.
