Will they, won’t they?

In the UK, handwritten and homemade Wills are perfectly acceptable?but,?as?they are?prepared without the assistance of a?solicitor,?they are?often?challenged, for example, because:

1. The testator (the person making the Will or Codicil) was unduly influenced or the Will?was obtained by fraudulent calumny?(i.e.?where somebody has “poisoned” the testator’s mind).
2. The testator did not have the relevant testamentary capacity to execute the Will.
3. ?The testator did not know or approve the contents of the Will.
4. The testator did not execute the Will correctly.

A testator is free to?prepare their own Will and?store?it?wherever?they wish. Even a Will scribbled on a scrap of paper can be admitted to the Probate Registry,?provided it has been executed correctly and in line with the strict rules set out in the Wills Act 1837, namely:

1. The Will must be in writing.
2. It must be signed by?the?testator (or some other person by their direction and in their presence).
3. It?must?appear that?the?testator?intended by his signature to give effect to?the?Will.
4. The testator?signs in?the?presence of?two?or more witnesses?who are?present at the same time.
5. The witnesses each sign the Will in the presence of?the?testator.

Practical tips

1. If?you have made a first draft of a Will?or if you have received a draft document from a solicitor, but it is not the final version?and you wish to amend it,?then you should?not sign it and you should?make?sure it is clearly stated that?it is only a draft?version?and is not intended to be relied upon.
2. Always inform your chosen executor that?they have been?appointed and let them know where your original Will is stored.
3. Given how important a Will is, it is best practice to store it in a safe place. You can register your Will on the National Will Register, which can help family members or friends locate your Will on your death.
4. If you have previous Wills in your possession that are no longer valid because you have made a later Will, then you should ensure you destroy the earlier Wills. Similarly, if you have a Will stored at a firm of solicitors and you then make a new Will elsewhere, you should inform the?previous?solicitors of that.
5. Whilst it is?always?advisable to have a Will drafted by a professional; if you do intend on making a Will at home, you should type the document instead of handwriting it because illegible handwriting could lead to a dispute.
6. If any clauses in your Will are likely to be controversial, you should prepare a letter of wishes (LoW) or explanatory note to be stored with your Will. This is especially important if you have not instructed a solicitor?to draft your Will because,?in this case,?there will not be?a solicitor’s “Will file”.?The?LoW?can include an explanation as to why you made the Will the way you did which could help to defend any claim in the future.

For advice on this and related matters, get in touch with our probate expert, Pratima Glazer on [email protected]