In an unfortunate recent case, the High Court concluded it couldn’t use the Administration of Justice Act 1982 to correct an obvious error made in executing a will. Under that Act a “clerical error” can be corrected. Nick Manning a partner in local law firm Stephen Rimmer LLP says: "A very unusual case, with lessons for all to think about.”
The court was asked to consider “mirror” wills executed by an elderly couple, in which each bequeathed their entire estate to the other and then, on the second death, the whole to a man they had cared for since he was 15 years old and whom they regarded as their son. The problem was that despite witnesses being present, each signed the other’s will by mistake, and the error went unremarked until they had both died. The court ruled that despite the fact that this was obviously a mistake, the wills could not be rectified as they had not been executed validly in the first place. The judgement means that the estate will pass, under the intestacy laws, to the couple’s natural children, who were not close to their parents, and who had been excluded under the wills.
Nick Manning comments: “This case couldn’t more clearly demonstrate why using a solicitor is vital. For two reasons, first to get it right in the first place, but second, if it does go wrong, the solicitors’ professional indemnity insurance stands there to rectify the error where the Courts can’t, as will probably happen in this case.”
Avoiding homemade Wills is crucial for anyone who wants to ensure their estate is properly looked after. A recent article from Money Week highlighted that there has been a rise in the number of people opting for cheap, write your own Will kits which may seem cost effective at the time.
However, in the long run it may emerge that mistakes in the document make the Will null and void, therefore leaving any intended beneficiaries in a difficult legal position. D.I.Y. documents are also vulnerable to challenge should they ever be disputed in Court.
There are just so many things that go wrong with D.I.Y. Wills from the wording of the document, to the required formalities for how it must be signed and witnessed before it can be valid. Although it can be stressful to even think about estate planning, doing it properly is essential.
Grant Sanders – Executive in the Private Client Department comments:
“Good advice is essential when it comes to making a Will. Without it you may discover that the Will is not even valid. Making a Will is about more than simply putting words up on a page – it is ensuring that what you have passes to the people you want it to, in the way that you want it to. With a properly drafted Will your estate can be administered with as few complications as possible and at the same time minimising the amount of tax you and your family have to pay. In a recent case I dealt with, someone had completed a D.I.Y. homemade Will which covered two separate pages. Sadly, the evidence was that the wording on the second page was added after the Will was originally executed and, as a result, the estate passed to an estranged cousin whom the deceased had never met, rather than the person and charity she had wished to benefit. The extra work involved in dealing with the D.I.Y. Will and the complications that arose far outweighed any initial cost that would have been payable if legal advice had been sought.”
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If your Will is deemed lost or indeed never written your loved ones and benefactors are exposed to potential financial loss and obviously additional stress.
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Nick Manning recommends that younger people consider Lasting Powers of Attorney to protect their dependents.