Why do I need to pay to create a Will using your service, when I can get a free one downloaded from the internet, or buy a blank Will kit from WHSmith for a couple of pounds.
We get this question a lot, and it is sometimes difficult for people to fully understand the difference between using an online Will writing services like the one at LegalWills.co.uk compared to using a blank Will kit.
To illustrate the difference, we have highlighted just 20 ways in which using a blank Will kit can lead to a disaster. Because, ironically, the simpler the Will kit, the more difficult it is to write a well drafted Will. You may find it interesting that these were culled from an initial list of 45!!
1. You don’t check where the Will kit came from and who created it.
Before you download a free Will kit template, stop and think about who actually prepared the template. Nowadays anybody can set up a professional looking legal website for free using WordPress in about 2 hours. They can register a decent domain name for about £10 and be processing orders within a day. It would be easy to outsource the creation of a Will template to a service like oDesk, eLance or Fiverr to somebody overseas for about £25. Throw up a few random, made-up testimonials and people will start downloading your template. However, there may be typographical errors, or more seriously, legal errors that could make the final document unenforceable.
2. Not covering the correct jurisdiction
This isn’t so much of an issue if you are buying a Will kit from a bookshop, but if you order a downloadable form from the Internet, you must make sure that it was created to comply with the laws of your jurisdiction, and that you a buying the correct one. On Amazon.co.uk they are selling a Wills and Trusts kit that has presumably been purchased many hundreds or thousands of times. Fortunately, two people have taken the time to explain that this is written for US estate law and is utterly meaningless under UK law. I just wonder how many people have used this kit, think they have written their Will, but their loved ones will discover only too late, that this Will is simply not going to work. The author of this particular book is an estate attorney from Michigan.
3 Out of date Will kit
Laws do change. In fact, earlier this year, the intestacy laws of England and Wales were overhauled (how your estate is distributed if you do not have a Will). Certainly laws over things like same-sex marriage have evolved over the last decade or so. Again, a quick look on Amazon.co.uk shows a Will kit dating from 2001 that has the double whammy of also being a US book. I feel that I need to shout out to everybody in the UK “don’t buy this book, it will not work”.
Now that we’ve explored some danger in sourcing the Will kit, let’s delve into how the form can be completed incorrectly. Bear in mind that some kits look like this (really, they do, we paid money for this kit and this is what it looked like)
A genuine blank form Will kit
What could go wrong here?
4 Doing something you’re not allowed to do
There is a general legal tenet called “testamentary freedom” which is in essence the freedom to do whatever you wish with your estate. However, this is has to be understood in the context of the Inheritance (Provision for Family and Dependants) Act 1938 which requires us all to take care of our family and dependents within our estate distribution. You simply cannot just disinherit your spouse, or leave your young children without any inheritance at all. Do you have a right to spite your family? does the distribution of your estate have to be in everybody’s best interests? In short, you cannot always do whatever you wish in the distribution of your estate, and some people have a legal right to be included.
5 Listing all of your assets
This is one of the most common errors found in a do-it-yourself Will kit. There is a common misconception that you are trying to describe the distribution of your entire wealth and possessions. People start with maybe the house, then the car, and work their way down through their possessions in order of value. There are two critical issues with attempting to do this.
Firstly, you are probably not going to die today, and in all likelihood you will acquire and sell your possessions throughout the remainder of your life. You should in fact be writing a Will that is going to work for you in ten years, twenty years and beyond. You do not want to be in a position to have to update your Will every time you open a new bank account, or buy a car, or sell a watch.
In addition, you won’t remember everything, so what is the distribution plan for everything not listed? There was a well reported case last year of a woman in the States who had her Will thrown out because she attempted to list her assets in a blank form Will kit, then made an update to the Will without making any provision for everything else – what is known as a residual clause.
Your Will should really say something like “leave my entire estate to James Smith” or “divide my entire estate equally between my children” and it will then be up to your Executor or trustee to determine the contents of your estate at the moment you die.
It is important to help your Executor find your assets, so you should include a list of your accounts and policies and store these with your Will. We encourage people to use our LifeLocker service. Otherwise you may have assets that are never found.
6 Not covering alternate scenarios
This is another very common pitfall of a blank Will kit that is completely removed when you use an interactive service like the one at LegalWills.co.uk. We often hear people say “My Will is very simple, I just want everything to go to my spouse”. This is great except if both of you are involved in a common accident – then what will happen? More complicated is the scenario when the estate is to be divided between children, but what if one child was to pre-decease you; would the estate be divided between the surviving children, or would the deceased child’s share go to their children instead?
It is not just with the beneficiaries that alternate plans need to be in place. Do you have a backup Executor in case your first choice is unable or unwilling to serve, or backup guardians for children. You have to imagine every conceivable scenario and make sure that you still have a Will that works, and this is not an easy task using a Will kit.
7 Not clearly identifying beneficiaries
Everybody in the Will must be uniquely and unambiguously identifiable, so saying something like “distributed between my three cousins” may lead to confusion in cases where you may have an extended family and actually, “oh yes, I do have two other cousins, but I’ve never met them and I don’t really think of them as my true cousins”. And supposing you have a new baby cousin come into the World after writing the Will, but then one of the cousins that you referred to in your Will pre-deceases you, then who are your three cousins?
Obviously expressions like “Give £10,000 to my best friend John” is going to result in a number of people coming forward claiming to have been your best friend.
8 Not having a residual clause
This is somewhat related to the previous points, but every Will needs to have an “everything else” clause. Your estate will firstly pay out debts, taxes owed and funeral expenses. Next comes any specific bequests to beneficiaries, and then the remainder, the residual, is distributed. But the residual estate is not just everything other than the specific items, it is also everything that cannot be distributed according to your preferred wishes. If you left £5,000 to your sister, but she pre-deceased you, then that bequest will fall into the residual estate. You will need a residual beneficiary and also an alternate residual beneficiary and this is often omitted from a Will kit.
9 Getting the arithmetic wrong
You may think this is unlikely, but we often have support questions coming in asking how an estate can be divided equally between 5 children when expressed as a fraction.
A simple but critical error. For those that do distribute their estate by listing specific items and then a residual clause, they get tripped up on the division of that residual clause. Percentages do not always work either, because dividing an estate by percentage to three beneficiaries in equal shares cannot be done. When you try to distribute by fractions in anything other than equal shares, it can take some head scratching.
10 Not writing legibly
When using a blank Will kit you are expected to handwrite your description in a large white space. Not many of us own typewriters anymore, so it relies on neat, clear handwriting. You may be surprised at the number of times an amount like £50,00 is written into a Will, is this fifty pounds? 500? 5000 with the comma in the wrong place, 50,000 but missing a nought?
11 Not granting the correct powers to the Executor
This is where the legality of your do-it-yourself blank Will kit gets really challenging. A well drafted Last Will and Testament usually runs for about 5-7 pages and includes a number of powers being granted to the Executor. For example, one of the clauses in our Will documents is
“My Trustee may make any division of my estate or set aside or pay any share or interest therein, either wholly or in part, in the assets forming my estate at the time of my death or at the time of such division, setting aside or payment, and I expressly will and declare that my Trustee shall in his or her absolute discretion fix the value of my estate or any part thereof for the purpose of making any such division, setting aside or payment, and the decision of my Trustee shall be final and binding upon all persons concerned.”
It is an important clause, and a piece of legal wording that would be impossible for the layperson to conjure up.
12 Not correctly setting up trusts for young children
A child cannot inherit anything directly. You cannot leave £100,000 to a five year old. It must go into a trust for the child until they reach either 18 (by default) or an age that is specified by you in your Will. Many people feel that 18 is a little young to be receiving a large inheritance, so in a well drafted Will, the age is raised to something like 25. However, a well written Will allows the child to gain access to parts of the trust for their medical care, or education. All of this should be written into the Will, and unfortunately a blank Will kit is unlikely to adequately set this up.
13 Not naming guardians for children
Aside from distributing your possessions to beneficiaries and naming a person to take responsibility for this (your Executor or Trustee), one of the key purposes of writing a Will is to name a personal guardian for your children. If both parents were involved in a common accident, who will take responsibility for raising your children. It is often a difficult decision, and one that should preferably not be left up to the courts. A service like the ours at LegalWills.co.uk would require you to enter the birthdates of your children, and if they are under 18, will prompt you to name a guardian and also set up a trust for each child. It is easy to miss this completely when using a Will kit.
14 Including your funeral wishes
There is a common misconception that one of the roles of your Will is to set out your wishes for your funeral service. There are a couple of reasons why this doesn’t make sense. Firstly, your funeral wishes are just that; wishes. They are not legally enforceable in the same way as the distribution of your estate. You would hope that your loved ones and your Executor would respect your wishes, but there is no legal way to force your loved ones to adhere to your funeral wishes. More importantly though, there are procedures that have to be followed in administering your Will including proving that your Will is indeed the final document to be administered. By the time this is done and the courts have established the validity of your Last Will and Testament, your funeral will likely have long since been taken care of.
We recommend that you write your funeral wishes into a document that is stored with your Will. There are no legal signing and witnessing requirements associated with your funeral wishes, so you can update the document at any time. If you use a Will kit, avoid the temptation to use it to express your funeral wishes.
15 Making a handwritten change
What happens when you have completed your Will using a blank Will kit template, and then you discover that you have forgotten something, or that your circumstances have changed in some way. How do you update your Will?
The worst thing you can do is cross something out and re-write a portion of your Will. There is a good chance that the entire Will would be invalidated because the authenticity of the document will be in question. Nobody will know when the change was made, and under what circumstances. Were you forced to make the change? did somebody make the change after you died? At LegalWills.co.uk we encourage you to login to your account, make the change, and print off a brand new Will. You may have heard of a codicil which is a separate document that refers back to the original Will. We wouldn’t recommend this either.
16 Trying to be too complicated in your description
Even using our service we see people trying to map out a future for their families using their Will. It is especially tempting to do this when confronted with a large blank space to be completed in a Will kit template. We see things like
“I would like my house to not be sold, but be made available to each of my three children so if they need somewhere to stay, they can use the house. But if one of them doesn’t want the house, they don’t need to use it, but maybe a member of their family could use the house if there was nobody living in it.”
This type of bequest is very difficult to untangle and is just too complicated to be included in a Will. The bequests should where possible name an item, and a beneficiary and that is it.
17 including a conditional bequest
Related to this is the conditional bequest, and particularly the open-ended bequest that appears in many wills created through a Will kit. Something like “I leave £100,000 to my nephew if he gets married” or “graduates from University” or “if he has children” or worse “if he stays out of trouble”! The problem with these bequests is that they are never ending. Somebody (your Executor) will have to hold onto the bequest for the rest of your nephew’s life, he may get married when he’s 80 years old. Other conditional bequests can have strings attached like “I leave my car to my son as long as he never sells it”, but it’s an impossible bequest to monitor. In general these should always be avoided.
18 Not signing the document correctly
if you write your Will yourself, it doesn’t need to be witnessed
This is one of the most dangerous areas of confusion which isn’t helped by the huge amount of misinformation available on the internet. In some jurisdictions including some US States, Canadian Provinces and Scotland before 1995, if you wrote a Will entirely in your own handwriting it did not need to be signed and witnessed. Some people took this to mean that if you prepared your own Will without using a solicitor using a Will kit, it does not need to be witnessed. In general, any Will has to be signed in the presence of two adult witnesses with all three of you in the same room signing at the same time.
19 Having beneficiaries serve as witnesses
As an additional note, witnesses cannot have anything to gain from the contents of the Will, which includes beneficiaries and also the spouse of a beneficiary. This would result in at least their own inheritance being forfeited but could possibly even result in the Will’s authenticity being questioned.
20 Not telling anybody that you’ve written a Will
My father prepared his own Will, but we don’t know where he stored it. What can we do?
I think we receive this question more than any other at LegalWills.co.uk, and it is heartbreaking to know that somebody took the time to prepare their Will, but didn’t tell anybody where it was stored. The net result is they effectively died without a Will. This is of course, not unique to a do-it-yourself Will kit, but it is possible to prepare a Will using a Will kit without a soul knowing about it. The issue is definitely more prevalent for people who take this approach.
As I mentioned at the beginning, I culled this list down from nearly 50 problems with a blank Will kit. Even if you watch out for these 20 highlighted issues, there is still plenty of room for messing up your estate planning using these blank forms. This is why a service like the one at LegalWills.co.uk guides you through the process with help along the way so that these pitfalls can be avoided.
If you have any experience of either using a Will kit, or trying to deal with an estate that was distributed using a Will kit, I would love to hear from you.
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