When a “Simple” Will Isn’t So Simple

A case study in the risks of homemade & DIY wills 

A client recently came to us following the death of a family member who had prepared their own will at home without any professional advice.

At first glance, it appeared straightforward. The deceased had left gifts to family members, including specific items, gifts to grandchildren, and had dealt with the remainder of their estate.

But as we began to administer the estate, a number of problems emerged. None of them had seemed particularly significant when the will was written.

They became very significant once the person who wrote it was no longer around to explain what they meant.

The case study

1. No attestation clause

The will had been signed and witnessed, but there was no attestation clause recording the circumstances in which it had been executed.

Section 9 of the Wills Act 1837 sets out the formal requirements for signing and witnessing a will. An attestation clause is not itself required for a will to be valid. However, where there is no attestation clause and questions arise about execution, additional evidence may be required.

In this case, the executors had to establish who had witnessed the will and what had happened when it was signed. This can involve locating witnesses and obtaining witness statements for the Probate Registry. The issue wasn't necessarily that the will was invalid but proving its validity became more difficult.

2. No clear revocation of the previous will

The deceased had made an earlier will, but the homemade will did not contain a revocation clause.

A later will can revoke an earlier will, including by inconsistency, and section 20 of the Wills Act 1837 deals with statutory methods of revocation. However, without clear wording, the executors had to establish what previous wills existed and how they interacted with the new will. A revocation clause could have avoided the uncertainty.

3. “I leave my necklace to Sarah”

That sounded clear — until we discovered the deceased owned three necklaces. Which one was Sarah meant to receive?

The will gave no description or identifying details.

The court can, in appropriate circumstances, consider extrinsic evidence when dealing with ambiguity under section 21 of the Administration of Justice Act 1982 but that can mean more investigation, evidence and potentially disagreement between beneficiaries.

4. “My grandchildren”

The will also contained gifts to the deceased's grandchildren, but did not make clear whether the intention was to benefit:

• grandchildren alive when the will was signed;
• grandchildren alive at the date of death;
• grandchildren born after the will was made; or
• descendants of a grandchild who died before the deceased.

The law contains rules dealing with class gifts and, in certain circumstances, gifts to descendants who predecease the testator but those rules may not produce the outcome the deceased actually intended. What did this mean for the family?

What appeared to be a simple estate now required additional work, including:

• locating the witnesses;
• obtaining evidence about execution;
• investigating previous wills;
• identifying the intended necklace;
• considering the meaning of the gift to the grandchildren; and
• assessing whether any further evidence or court application was required.

The hidden risk of a homemade will - the person who wrote it knows what they meant. After their death, everyone else has to work it out. These issues are not unusual. We see homemade or poorly drafted wills that:

• are incorrectly signed or witnessed;
• use a beneficiary as a witness;
• fail to revoke previous wills;
• contain unclear gifts of property or possessions;
• do not say what happens if a beneficiary dies first;
• use unclear definitions of “children”, “grandchildren” or “descendants”;
• have no effective residuary clause;
• have not been updated following marriage, divorce, births or deaths;
• fail to take account of jointly owned assets, pensions or life policies; or
• overlook inheritance tax, trusts or vulnerable beneficiaries.

What should clients do?

A will is one of those documents where getting it right at the outset can save significant time, cost and family tension later.

Clients should consider:

• ✓ Having their will professionally drafted by a suitably qualified and regulated professional.
• ✓ Clearly identifying significant gifts and beneficiaries.
• ✓ Making clear what happens if a beneficiary dies first.
• ✓ Expressly revoking previous wills where the intention is to replace them.
• ✓ Considering the wider estate, including property, pensions, business interests and tax.
• ✓ Reviewing the will regularly, particularly after major family or financial changes.

How We Can Help

At Laurus, we can help clients review their existing arrangements and ensure their will properly reflects their wishes and wider estate-planning position. A little planning now can prevent a lot of uncertainty later. Whether you require support with straightforward estate planning or a something more complex, we provide clear, practical advice tailored to your circumstances.

If you would like to discuss updating or creating a will, or to arrange an initial consultation, please contact our Legacy Department on enquiries@lauruslaw.co.uk