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Make a Will, not a homemade mistake

View profile for Dan Fellows
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With everything going on at the moment, much more than usual people are aware of their own mortality and, naturally, many people have decided they cannot put making a Will off any longer. However, I have no doubt that making a Will may seem easier said than done with uncertainty over such things as whether solicitors are open, whether or not face to face meetings will be possible, or safe, and whether it will be possible, or indeed within the rules, to get two people to witness the Will being signed. This can create something of a mental block.

Here at Chattertons, we have continued to provide our service to clients throughout the pandemic and whilst we have tried to minimise face to face meetings by making use of video calls and phone appointments, we can still meet with clients were necessary and our large and experienced team are doing what we can to ensure the will-making process is still as easy as possible.

Something that I would certainly not like to see, but what may seem like a solution, is for there to be an upsurge in the number of homemade Wills being made.

I recently had a case concerning, what would have appeared to the testator to be, a very simple homemade Will. Unlike many homemade Wills, this short Will had been signed in accordance with the legal requirements and was therefore valid. The Will was very simple and comprised of a list of assets the testator wanted to leave to his nieces. However, no executor had been appointed and the Will and, although his Will dealt with most of what he owned, there were some assets the testator had not mentioned.

I was asked to assist in applying for the Grant of Probate in the matter but this was far more complicated than the testator could ever have imagined. Generally, the authority to get a Grant of Probate rests with the executors of the estate. Where no executor is appointed, responsibility usually falls to the people receiving the residuary estate (i.e. everything else after payment of any debts and specific gifts). In this case, the testator had not appointed an executor nor specified what should happen to his residuary estate. Arguably, some of his estate went to other members of his family under the intestacy rules (the rules that usually only apply where there is no Will at all) and these people would have authority to deal with his affairs.

This is not what the deceased would have wanted, and because the proportion of the estate passing under the intestacy rules was so small, none of the recipients would have had any incentive to do the work involved in sorting out the estate as a whole.

It is not uncommon in a scenario where there is legal uncertainty or where a dispute arises for the administration of an estate to be delayed by months or even years, even where the size of the estate is relatively modest. In this case we were able to find a way forward and the nieces were able to apply to the probate registry to obtain a Grant of Representation giving them authority to deal with the estate on the basis that the specific gifts cumulatively made up the majority of the estate.

The case highlights to me the dangers of homemade Wills and, in my experience, it is often the case that a homemade Will is the absolutely embodiment of a false economy. By saving yourself the relatively small cost of a Will, you could create much more costly legal complications and risk something completely unwanted happening to your estate.

If you are thinking about making a Will at the moment, please do make contact. Our Wills, Trusts and Probate team will be very happy to assist.

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