The Practical Implications of “DIY Wills” from an Executry Perspective
- What is a “DIY Will”?
A “DIY Will” may be something as simple as a handwritten note, or perhaps you have thought about buying an “off the shelf” pre-prepared DIY Will kit which provides a Will template of sorts.
- What creates a valid Will in Scotland?
In Scottish law there are certain legal boxes to be ticked to ensure a Will is both valid and self-proving. If a Will does not comply with these requirements there may be additional legal processes to go through after someone passes away.
DIY Will kits are frequently based upon English law signing formalities which are quite different from Scottish ones.
- Issues with “DIY Wills” after a death
Before considering the validity of a DIY Will, there are more immediate practical considerations to be mindful of i.e. did the deceased make anyone aware of the existence of the DIY Will or take copies? Would the Will be easily located in their paperwork? Has the deceased since written another Will that may override the DIY one and, if so, can this be located?
- Practical estate administration issues with “DIY Wills”
- Wills that do not meet all of the valid signing criteria may well need to be “set up” through the court. Put simply, this means an application to the court is needed to have these problems rectified, which often involves obtaining affidavit evidence from witnesses or others who knew the deceased. A legal opinion from another solicitor or Advocate may also be required depending on circumstances e.g. to determine if the content of a DIY Will is sufficient to constitute a valid “testamentary writing” (i.e. a Will) or to try to establish what the deceased’s intentions actually were.
- A DIY Will may not appoint Executors or have any “back-up” Executors should their nominated Executor have predeceased or lack capacity, and a court appointment may be required to have Executors appointed.
- DIY Wills often have no provision for “back-up” beneficiaries should any of the named beneficiaries die before the person who made the DIY Will. This could lead to unintended consequences when it comes to the division of the estate.
- DIY Wills usually do not include trust provisions for young/vulnerable beneficiaries and an Accountant of Court may have to become involved to safeguard funds for any children under the age of 16.
- It is often wrongly assumed the law fairly covers all aspects of modern family lives and there may be complex family dynamics to consider which simply cannot be accommodated in a DIY Will.
- Inheritance Tax (IHT) implications for an estate – perhaps options to mitigate an IHT in an estate could have been explored had professional advice been sought, and a Will professionally drafted.
- Legal rights – in Scottish law, you cannot disinherit a spouse or children from an estate even when you have a Will in place and this can also have implications for an estate; these could also have been explored had professional advice been sought.
(For more information about legal rights in estates where there is a valid Will, please refer to the article “The Intricacies of Legal Rights: 5 points to be mindful of” by Megan Hainey) – https://bit.ly/3rc6z3U
- Solutions to Avoid Potential Issues
The obvious solution is, of course, to have a Will drafted by a solicitor to ensure that all avenues have been explored and discussed, tailoring the Will to the client’s specific needs and requirements. Of course, there is also nothing wrong with a properly executed DIY Will in certain circumstances but, in our experience, cases where we have encountered problematic DIY Wills easily outweigh those that may be considered to be properly executed. If in doubt, always seek professional legal advice.
If you need any advice about drafting a Will or dealing with the administration of an estate, get in touch with Blackadders’ Private Client Teams working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.
Joanne Todd, Associate Solicitor
Private Client, Executries
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