We are in the midst of a very strange time with the outbreak of the COVID-19 pandemic. People are being asked to “self-isolate”, some people are being quarantined, and thoughts are turning to estate planning and getting one’s affairs in order.
We get this question a lot: “Can you let me know how to make a Will for my parents, or an elderly neighbour?” You may have a friend or family member who needs a Will, but they are not very good with computers. You have heard horror stories about the blank DIY Will Kits and how they don’t produce quality final documents. Surely there must be another option.
You may also be thinking about creating a Lasting Power of Attorney for property and financial affairs, or a Lasting Power of Attorney for Health and Wellfare. Perhaps you’re even considering an Advance Directive.
You may not want to book an appointment with a solicitor. You certainly don’t want strangers coming to your door (or your elderly parent’s door) offering to write a Will. Is it possible to prepare documents for somebody else without an appointment, and without leaving one’s home?
Let’s be clear from the outset. The person that you intend to prepare the Will for must have testamentary capacity. It’s one thing for them to not like computers, but if they are struggling with a cognitive illness like dementia or Alzheimer’s, then this is a non-starter. The person must know that they are working with their Last Will and Testament, they must understand the contents of that document, and they must appreciate the implications of what they are signing.
We would also recommend steering away from this approach if you are planning on making yourself a beneficiary in the Will, particularly if other people have an expectation that they will be beneficiaries, but are going to be disinherited. For example, if you are one of three siblings, and you want to help your elderly mother prepare her Will leaving everything to yourself, there is a good chance that the Will is going to be challenged and ultimately rejected by the courts. Likewise, if you are a care provider and planning to include yourself as a beneficiary, we would not recommend taking this approach.
If you want to know how to make a Will for somebody who is visually impaired, or who cannot read, we would recommend that you seek legal advice. We are assuming in this article that the testator (the person for whom the Will is being written), is able to read and to understand the document.
Dying without a Will
Everybody needs a Will. Sadly most people don’t get around to preparing their Will until it’s too late. The Guardian newspaper claimed that 30 Million adults in the UK don’t have a Will in place. Survey after survey shows around 65-70% of Brits don’t have a Will.
Dying without a Will firstly places a burden on your family and loved ones. Assets are immediately frozen until it can be established that no Will exists (not a straightforward task). The courts then have to appoint an estate administrator who will take responsibility for filing taxes, paperwork, gathering assets, and then distributing them according to intestate laws. The distribution can be figured out with a handy quiz available from the gov.uk website. Don’t assume that everything will just go to the spouse, or just be distributed between children. It may end up that way, but it is by no means certain.
What you can do with a Will
The key values of having a Will in place are firstly making key appointments. You can name an Executor, or personal representative who has the responsibility to gather and secure your assets, pay taxes and funeral expenses, and then distribute the estate according to the instructions in the Will.
If applicable, the Will also allows you to appoint a guardian for young children, and set up a trust for the children that determines the age at which they will receive their inheritance. You can also name a trustee who has responsibility to look after the trust fund until the children become old enough to receive their inheritance.
When you think about a Last Will and Testament, you probably think about the distribution of your assets; setting up an inheritance for friends and family members. There is actually a lot you can do when you divide up your possessions. You can of course pass things down to family members, but you can also recognize people or groups that have made an impact on your life. There may be a charity that is important to you, or a community project. There may be a person who has come into your life that has made a difference, somebody who has been particularly kind to you. Your Will is a great place to show your appreciation for these people and organizations.
You can leave sums of money, specific items, or even a percentage of your estate to any person or organization that has affected your life.
Is it legal to help somebody make their own Will?
In the UK, Will writing is an unregulated profession. There have been calls from the law society to make it the exclusive domain of solicitors, but this was rejected by the courts. As a result, there are countless Will making services throughout the UK. They range from firms of solicitors through to the disreputable will writers who accost you in your local shopping centre.
You can also simply buy a Will kit from Amazon, or WHSmiths. But these blank forms are generally a bad idea because they result in very poorly drafted Wills. However, there would be nothing legally stopping you from sitting down with a friend or family member to step through the Will kit and to work on preparing their Will together.
In the US and Canada there are rules against the “unauthorized practice of law”. However, the UK does not have an equivalent statute. You are free to provide legal advice to anybody as long as you do not claim to be a solicitor.
Anybody has a right to prepare their own Will, and in its simplest form, there is no need for a comprehensive legal education to prepare a Last Will and Testament.
How to make a Will in the presence of the testator
There are three approaches to preparing somebody’s Will.
1. Work together starting with a blank piece of paper
This is by far the most difficult approach and generally is not recommended. No qualified solicitor writes a Will starting with a blank piece of paper. You might be able to do the basics, E.g. state that it’s a Will, revoke previous Wills, name an Executor and distribute the possessions. But very quickly the document becomes too difficult. You need to make plans in case your first choice plan cannot be honoured, for example, your main beneficiary pre-deceases you, or dies in a common accident.
You also may need to set up trusts for young children, the wording of which is beyond any layperson.
Our Wills also include dozens of clauses that stipulate the powers being granted to the Executor in administering the Will. If you prepare a Will from a blank piece of paper, even by finding sample will templates on the internet, you would not be able to craft a well drafted Last Will and Testament. It may be the cheapest approach, but it is by far the most time-consuming and delivers the worst results.
2. Use a Do-it-yourself Will kit
This isn’t much better. A quick look on Amazon.co.uk shows that two of the bestsellers were published in 1996, and countless others are written for US law that don’t even apply to the UK.
Laws change over time and there are certainly variations from one country to another. Our sister services at LegalWills.ca and USLegalWills.com provide very different final documents when compared to those at LegalWills.co.uk.
The biggest issue with the blank form kits is that there is just too much blank space. We purchased this one. It claims to be a “Will kit” but it’s little more than a blank piece of paper. At the top, it says “I give the following legacies”.
The most common mistake made with this type of kit is that people attempt to list their entire inventory of assets. You must keep in mind that the Will is not written to come into effect today, but hopefully not until decades into the future. If you were to list your assets in your Will, you would have to make an update every time an asset changed. Each update to the Will would require being signed in the presence of two witnesses, even if it were just making a small edit.
3. Use an online service like the one at LegalWills.co.uk
More people are moving to online Will writing services like the one at LegalWills.co.uk. The service works entirely in your browser so there is no complicated software to install and no system compatibility issues.
You can sit with your friend or family member and set up an account in their name, but with your email address. You create a User ID and password, and then start stepping through the service.
You can work through the nine questions in an interview format. The sections are:
Section 1: Introduction
Section 2: Personal Details
Section 3: Family Information
Section 4: Other Beneficiaries
Section 5: Guardians for Minor Children
Section 6: Executor
Section 7: Distribute Your Possessions
Section 8: Trusts for Young Beneficiaries
Section 9: Forgive Debts
Within each of these sections are are subsections depending on complexity of the Will. For example, section 7: Distribute Your Possessions can have as many as 7 subsections. We will ask you about charitable bequests, pet trusts, specific legacies, and alternate plans. Depending on the family situation, you may even be guided through additional items like creating life interests in a home.
Once you have stepped through the service, you can download the completed document.
Bear in mind that our service works in an entirely “responsive” way. This means that it works equally well on a computer, a tablet or iPad, or even on your phone.
How to make a Will on behalf of somebody else
Supposing you want to write a Will for somebody but they are not mobile, and they have no internet access. Perhaps you want to prepare the document for them, but you won’t be seeing them for a week. Supposing you work with clients in a vulnerable population and meet them only once in a while. You won’t have an opportunity to sit down with them and your computer. Can you still help them to write a Will?
At LegalWills.co.uk we provide a Legal Will UK information collection template that can be downloaded from the link. You can work through this template over the phone, or leave it with the person for whom you are writing the Will. If you have the answers to all of the questions in this document, you can completely step through the service on the LegalWills.co.uk website. You can also download the template by clicking on the image below.
The information gathering document is not a Will. It is simply a way of collecting information that can then be entered into the service on our website at a later time.
To create a Will for this person, you would go to www.legalwills.co.uk and click on “Try it Now” in the centre of the home page. At any point through the service you can save the information entered (or wait until the end). Then you will be prompted to create an account with a User ID and Password. You can also pay for the service at this time. The account details must have a unique combination of first name, last name, and email address, so you can use the same email address for multiple accounts. The User ID for each account must be unique.
If you have the completed questionnaire in front of you, you should be able to step through the Will creation service in about twenty minutes.
How to make a Will a legal document
This is the important critical step in the process. Once you have stepped through the service and paid the £39.95, you can download and print the document as a pdf or Word file. You can also email the document to another email address (maybe your office email) or save it to a USB memory stick. For a small fee, we’ll even print it for you and put it in the post. At some point though, the document must be printed.
The online version of the Will is not a legal document. It must be printed and signed in order to make it a legal Last Will and Testament. This is a critical step and the most common way of completely messing things up.
In order to make the Will a legal document, you should first print it and then the testator (the person for whom the Will is written) must read it thoroughly. They must be sure that it accurately reflects their wishes and that they understand everything that is contained in the document.
Once they are happy that it reflects their wishes, they must then sign the document in the presence of two independent witnesses. The two witnesses must also sign the Will in the presence of the testator and in the presence of each other. All three people should also initial each page, so that it is not possible to alter any pages after the Will has been signed. A witness cannot be a beneficiary of the Will, a family member, or be married to a family member, they cannot be the spouse or civil partner of a beneficiary (at the time of signing), they must be over the age of 18, and, like the “testator”, they must be of sound mind.
For the signing procedure, the testator and the witnesses gather together in a room. The testator should make a formal statement that they have gathered everybody together to witness the signing of their Will. The witnesses do not have to read the Will or know its contents. They are only required to witness your signature.
The testator and witnesses should initial each page in turn, in the bottom left corner of each page, and then the testator should sign their name in full on the last page and insert the date, in full view of the witnesses. Each witness then in turn initials each page, in the bottom left corner of each page, and signs the last page. Everybody must stay present until all of the signing is complete. Each witness should write their address alongside their signature and print their name below.
If the testator is concerned about the witnesses reading the Will, it is a common practice to cover each page with a blank piece of paper while the initials are being added.
There should only be one original of the Will for everyone to sign. Copies can be created by photocopy. It is therefore a good idea to sign the original in blue ink, so that it is easily distinguishable from the photocopies. Photocopies should not be signed, as this will create duplicate originals which can be difficult to administer.
Now you know how to make a Will
Many people are unable to afford the fees of a solicitor. There are many people with mobility issues who cannot get to a solicitor’s office. With the government’s calls to limit exposure to other people and to self-isolate, this becomes a very viable alternative to booking a meeting with a solicitor.
Everybody should have a Will, but blank DIY Will kits are woefully inadequate.
Thankfully there is now another option, i.e. interactive online services like the one at LegalWills.co.uk. Even if your client, friend, or family member is uncomfortable with the idea of using a computer, there are options. You can either sit with them and step through our service, or you can use our information gathering template.
Stepping through our service on behalf of somebody else is perfectly legal, and in many cases is the most practical approach to getting a high quality, well drafted Will for people who are unable to use the more traditional Will writing approaches.
What about the Lasting Power of Attorney?
This document is a little different and you should not prepare one through an online service or with a Will writer. The LPA for Property and Financial Affairs, and the LPA for Health and Welfare has to be registered with the government in order for it to be effective.
The government has therefore created an online service to prepare the document and submit it directly online. It is free to use the service, but registering the document costs £82.
You can certainly step through this service on behalf of somebody else and help them to prepare the LPA. However, the process can take up to 10 weeks before your document comes into effect.
The final document is an Advance Directive which allows you to express the medical treatment you would wish to receive if you were even incapacitated. This document can be created through our MyLivingWill service and you can follow the same steps when preparing one for somebody else; step through it on their behalf and have them sign the document in the presence of two witnesses.
If you have any questions, please add a comment, or email us at [email protected] and we will be very happy to help.
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