If you’re ready to make your will, the costs of getting professional advice may make you wonder whether it’s possible to make your own will. It’s certainly possible. You can pick up forms from the Post Office to do it yourself. However, there are some potential pitfalls. You must follow the rules to ensure your will is legally valid. I’ve had to sort out wills that haven’t been witnessed properly and even a joint will where only one spouse had signed and the other died first. Here’s an example of a couple who ran into problems when they made their own will.

What the client wanted

I recently spoke to a potential new client. He and his wife had taken legal advice but then decided they wanted to write their will themselves to save on legal fees. They wanted to create a trust for two reasons. Firstly, to protect their house from care home fees. Secondly, they wanted to ensure the surviving spouse could live in the house until they died, but move if they wanted to in the future so the trust needed to make provisions for that. Both wills had the same beneficiary who would eventually inherit their estate when both died. However, when the wife died, we uncovered some problems with the will.

Creating a trust

You can create a trust as part of your will if you follow some basic principles. Unfortunately, when the client and his wife wrote their wills, they missed some essential provisions. This meant that the trust didn’t do what they wanted it to and if not resolved may be held invalid and fail. They owned their home jointly and needed to sever the joint tenancy before creating the trust. Doing this would have meant that they each owned half of the house, so their share would go into the trust when one spouse died, they didn’t do this. They also forgot to appoint trustees or an attorney to look after the trust and act for the surviving spouse if they couldn’t manage their own affairs. Neither were there any instructions as to what would happen if the survivor wanted to move in the future, or house had to be sold as they needed to move into care.

Leaving a relative out of the will

Unfortunately, there was another complication. The couple had become estranged from one of their children and decided to leave everything to a grandchild with the thought that the grandchild could decide what to do and would make sure the rest of the family had their share. The law states that children and other dependents have a ‘reasonable expectation’ of being included in the will, and they can challenge if they aren’t. Grief and money can bring out the worst in people.  On the face of it the grandchild inherits everything and if family relationships break down further on death of the gentleman, they are left with a mess to clear up and a family argument to deal with.

The solution

Thankfully, there is a solution to the issues with the trust. If someone has died within the past two years, you can vary the will to sort out the problems and appoint trustees. Unfortunately, when I spoke to this client and gave him a quote, he baulked at the cost, and I haven’t heard back from him. Ultimately, the Court may need to be involved, which is even more expensive or the trust may fail and they won’t have the protection in place they thought they had. I feel for the grandchild who will eventually inherit but may have to face a legal challenge and a complex and costly legal and possibly Court process to sort everything out.

If you want to create a will that ensures your wishes are followed and your loved ones protected when you’re no longer here, we can help. Get in touch using the form below or call us on 0116 380 0752.