Writing a will without professional assistance may appear straightforward and inexpensive. However, even a minor drafting or signing error can have serious consequences. A mistake may invalidate the entire will, cause a particular gift to fail or lead to disagreement between family members.
Problems often come to light only after the person who made the will has died and can no longer explain or correct what was intended. The following examples illustrate some of the risks associated with a do-it-yourself (“DIY”) will in England and Wales.
The examples below are illustrative. The outcome of any particular estate will depend on its facts and the law applying at the relevant time.
The Will Is Not Witnessed Correctly
Section 9 of the Wills Act 1837 sets out formal requirements for executing a valid will. In general, the person making the will—known as the “testator”—must sign it, or acknowledge an existing signature, in the presence of two witnesses who are both present at the same time. Each witness must then sign or acknowledge their signature in the testator’s presence.
Failing to follow these requirements may invalidate the entire will.
Example
David completes a will using an online template. He signs it in his kitchen while alone. Later that day, he asks one neighbour to sign as a witness. The following week, a second neighbour adds their signature.
Although the document contains David’s signature and two witness signatures, the required signing procedure may not have been followed. If the will is invalid, David’s estate may pass under an earlier valid will or, if there is none, under the intestacy rules.
A Beneficiary Witnesses the Will
A beneficiary should not witness a will. Nor should the beneficiary’s spouse or civil partner.
Under section 15 of the Wills Act 1837, the involvement of a beneficiary as a witness does not ordinarily invalidate the whole will. However, the gift to that witness—or to the witness’s spouse or civil partner—will generally fail.
Example
Amira leaves £50,000 to her son, Khalid. She asks Khalid and a neighbour to witness her signature.
The will itself may remain valid, but Khalid’s £50,000 gift may be void because he acted as a witness. Depending on the remaining terms of the will, the money may fall into the residuary estate and pass to someone else.
The Will Is Revoked by Marriage or Civil Partnership
In England and Wales, marriage or the formation of a civil partnership will generally revoke an existing will unless the will was made in contemplation of that particular marriage or civil partnership and was drafted accordingly.
A person may therefore marry believing that an earlier will remains effective when it no longer does.
Example
Stephen makes a DIY will leaving his home to his two adult children. Three years later, he marries Helen but does not update the will.
Stephen dies believing that his children will inherit the property. Unless the will was properly made in contemplation of his marriage to Helen, the marriage may have revoked it. Stephen’s estate may instead be distributed under the intestacy rules, producing a substantially different outcome.
Divorce does not ordinarily revoke the whole will. Instead, the former spouse or civil partner is generally treated as having died before the testator for relevant purposes. This can also create unintended results if the will is not reviewed.
The Will Does Not Deal with the Whole Estate
A DIY will may list specific gifts but fail to include an effective “residuary gift”. The residue is everything left in the estate after debts, expenses, tax and specific gifts have been dealt with.
If the will does not dispose of the residue, some of the estate may pass under the intestacy rules. This is known as a partial intestacy.
Example
Margaret’s will states:
- “I leave my jewellery to my daughter, Jane”; and
- “I leave £10,000 to my grandson, Leo.”
The will says nothing about Margaret’s house, savings or investments.
Those remaining assets may not pass to Jane or Leo. Instead, they may be distributed under the intestacy rules, potentially benefiting relatives whom Margaret did not intend to inherit.
Ambiguous Wording Causes a Dispute
Everyday language is not always sufficiently precise for a legal document. Expressions such as “my family”, “my children”, “my savings” or “my personal possessions” can create uncertainty.
Example
Robert writes: “I leave my money to my children in equal shares.”
Robert has two biological children, a stepchild whom he raised from infancy and an estranged child from an earlier relationship. It is unclear whether he intended “my children” to include the stepchild. Unless legally adopted, a stepchild is not ordinarily treated as the testator’s child simply because of the family relationship.
Robert’s wording may lead to a dispute, delay and legal costs. A solicitor would ordinarily identify the intended beneficiaries by full name and address the position of biological, adopted and stepchildren expressly.
A Gift Fails Because the Asset No Longer Exists
A specific gift can fail if the testator no longer owns the relevant asset at death. This is often referred to as “ademption”.
Example
Priya’s will leaves “my house at 10 Station Road to my daughter, Anika”. Priya later sells that property and uses the proceeds to buy a flat at 20 Park View. She does not update her will.
The gift of 10 Station Road may fail because Priya no longer owns it. Anika does not automatically become entitled to the replacement flat merely because it was bought with the sale proceeds. The flat may instead pass under the residuary clause or, if there is no effective residuary clause, under the intestacy rules.
No Provision Is Made for a Beneficiary Dying First
A well-drafted will should consider what happens if a beneficiary dies before the testator. A DIY will may omit substitute beneficiaries or contain unclear contingency provisions.
Example
Graham leaves his entire estate to his brother, Peter. Peter dies before Graham, leaving two children. Graham does not change his will.
Whether Peter’s children inherit will depend on the wording of the will and the application of statutory rules. A gift to a sibling does not receive the same potential statutory protection as a gift to the testator’s child or other direct descendant. The gift may therefore lapse.
If there is no valid substitute or residuary gift, Graham’s estate may pass under the intestacy rules.
Changes Are Written onto the Will Informally
Handwritten amendments made after a will has been signed are not automatically valid. An alteration generally needs to comply with the same execution formalities as the will itself. Unclear amendments may also cast doubt on the original wording.
Example
Laura signs and witnesses her will. Two years later, she crosses out the name of one beneficiary, writes another name above it and adds her initials. The witnesses are not present and do not sign the amendment.
The alteration may be ineffective. Depending on when and how the change was made, the original wording might apply, the altered gift might fail or evidence may be needed to determine the legal effect. The dispute could have been avoided by executing a properly drafted codicil or a replacement will.
The Executor Cannot or Will Not Act
An executor is the person responsible for administering the estate. DIY wills sometimes appoint only one executor without naming a substitute.
Example
Frank appoints his older brother, Michael, as his sole executor. Michael dies before Frank. The will does not appoint a replacement executor.
The will does not necessarily become invalid, but an eligible person may need to apply for letters of administration with the will annexed. This can make the administration less straightforward and may mean that someone other than Frank’s preferred choice takes responsibility.
It is usually sensible to consider substitute executors and whether the people appointed are willing and able to act.
Guardianship Wishes Are Missing or Ineffective
A parent may use a will to appoint a guardian for a child, although when the appointment takes effect depends on the legal circumstances and parental responsibility.
A vague statement of preference, or a failure to make an effective appointment, may not achieve the intended result.
Example
Sophie writes: “My sister should look after my children.”
The wording does not identify the sister by full name, use clear appointment language or address what should happen if the sister cannot act. If Sophie has more than one sister, the provision may be uncertain. The appointment must also be considered alongside the parental responsibility of any surviving parent.
A properly drafted will can make an express guardianship appointment and name a substitute guardian.
Jointly Owned Property Does Not Pass Under the Will
A will does not necessarily control every asset. Property owned as beneficial joint tenants usually passes automatically to the surviving joint owner by survivorship, regardless of what the will says.
By contrast, a deceased owner’s share of property held as tenants in common can ordinarily pass under the will.
Example
Daniel’s DIY will leaves “my half of the house” to his daughter. However, Daniel and his second wife own the property as beneficial joint tenants.
On Daniel’s death, the property may pass automatically to his wife. The gift to his daughter may have no effect because Daniel’s beneficial interest does not form part of his estate. If Daniel intended his daughter to inherit his share, the form of ownership would have needed to be reviewed and, where appropriate, changed.
Pension and Life Assurance Benefits Are Overlooked
Death benefits under pensions, life assurance policies and workplace schemes do not always pass under a will. Their destination may depend on the policy terms, scheme rules, trust arrangements or a nomination or expression of wishes.
Example
Edward’s will leaves his estate equally between his three children. He assumes that his pension death benefit will be included. However, an old expression of wishes names his former partner.
The pension trustees or scheme administrators may need to consider that nomination under the scheme rules. The will may not override it. As a result, the overall distribution may differ considerably from Edward’s expectation.
A Trust Is Created Without Suitable Provisions
Leaving money to a child or vulnerable beneficiary may require a trust. A DIY will might create a trust inadvertently or fail to include the administrative powers needed by the trustees.
Example
Joan leaves £100,000 to her grandson, Oliver, “to be held until he is 25”. Oliver is only eight when Joan dies.
The gift requires trustees to manage the money for 17 years. However, Joan’s will does not clearly appoint trustees or explain whether the funds may be used for Oliver’s education and maintenance before he reaches 25. The omission may cause uncertainty and make the trust more difficult to administer.
Professional drafting can specify the trustees’ powers, the age of entitlement and the circumstances in which funds may be applied for the beneficiary.
The Will Does Not Account for a Vulnerable Beneficiary
An outright inheritance may be unsuitable for a beneficiary who is unable to manage money or whose means-tested benefits or care arrangements may be affected.
Example
Martin leaves £150,000 outright to his adult daughter, who has a disability and receives means-tested support. Martin assumes that his daughter’s siblings can manage the money informally for her.
An informal arrangement may offer inadequate protection and could create legal, tax and benefits-related complications. Depending on the circumstances, a properly structured trust may have better protected the inheritance and provided clear management arrangements.
A Promise to Exclude Someone Is Not Properly Addressed
A person has testamentary freedom, but that freedom is not absolute. Certain spouses, civil partners, former spouses or civil partners, children, dependants and others may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
A DIY will that simply excludes a family member may not take account of the risk of a claim.
Example
Anthony leaves his entire estate to a charity and writes: “I leave nothing to my son because he does not deserve it.” His son is financially dependent on him and has significant care needs.
The wording does not prevent a claim. It may also intensify the dispute without providing a careful, accurate record of Anthony’s reasoning and relevant circumstances. Professional advice cannot eliminate every possible challenge, but it can help identify the risk and ensure that the estate plan is made on an informed basis.
Mental Capacity or Undue Influence Is Alleged
A testator must have the required testamentary capacity and must make the will voluntarily. Concerns may arise where a DIY will represents a significant departure from an earlier will or has been prepared with the involvement of a major beneficiary.
Example
Eighty-nine-year-old Eleanor signs a homemade will leaving everything to a neighbour, despite an earlier will benefiting her children. The neighbour bought the template, filled it in and arranged the witnesses. There is no independent record of Eleanor’s instructions or understanding.
The new will may be challenged on grounds including lack of testamentary capacity, undue influence, want of knowledge and approval, or improper execution. Even if it ultimately proves valid, the absence of independent evidence may result in lengthy and expensive litigation.
A solicitor can take instructions independently, assess whether further evidence of capacity is appropriate and retain a contemporaneous record of the circumstances.
The Original Will Cannot Be Found
After death, the original signed will is generally required for the probate application. If a will last known to be in the testator’s possession cannot be found, questions may arise about whether the testator deliberately destroyed it with the intention of revoking it.
Example
Noah tells his family that he has made a will, but stores the original somewhere at home. After his death, the family finds only an unsigned photocopy.
Additional evidence and a court application may be required to prove the copy. If the original cannot be admitted to probate, Noah’s earlier will or the intestacy rules may apply.
Secure storage and clear records of the original will’s location can reduce this risk.
The Will Creates an Unexpected Tax Outcome
Inheritance tax and other tax considerations can be affected by the identity of beneficiaries, ownership arrangements and the structure of gifts. Seemingly simple wording may not produce the anticipated tax result.
Example
Henry leaves the amount of the inheritance tax nil-rate band to his children and the remainder to his wife. He copied the clause from an old will template without understanding its purpose.
Depending on the estate and the law at Henry’s death, the clause may create an unnecessary trust or affect the amount passing to his wife. It may also complicate the administration without delivering the tax outcome Henry expected.
Tax treatment depends on the applicable law and individual circumstances. Historic wording should not be used without checking whether it remains suitable.
The Potential Cost of Getting It Wrong
The apparent saving achieved by making a DIY will can be outweighed by the costs arising after death. Those costs may include:
- legal advice on interpreting ambiguous wording;
- applications to admit a copy will to probate;
- court proceedings concerning validity or capacity;
- inheritance claims;
- tracing missing beneficiaries;
- correcting the administration of an estate;
- additional tax or professional fees; and
- delay in distributing assets.
Legal costs are often paid from the estate, reducing the amount ultimately available to beneficiaries. Disputes can also cause lasting damage to family relationships.
How a Solicitor Can Help
A solicitor preparing a will can:
- establish the testator’s family and financial circumstances;
- identify which assets will and will not pass under the will;
- advise on executors, trustees and guardians;
- draft clear gifts and substitute provisions;
- consider trusts for children or vulnerable beneficiaries;
- identify potential inheritance claims;
- consider relevant tax issues;
- supervise correct signing and witnessing;
- record the testator’s capacity, understanding and intentions; and
- arrange secure storage of the original document.
Professional involvement cannot prevent every dispute, but it can substantially reduce the risk of avoidable errors and provide important evidence if the will is later questioned.
Conclusion
A will is intended to provide certainty, but a poorly drafted or incorrectly executed DIY will may create the opposite result. The document might be invalid, gifts may fail, assets may pass to unintended beneficiaries or the estate may become involved in costly litigation.
The most significant difficulty is that errors are usually discovered only after death, when it is too late for the testator to put matters right. Using a solicitor helps ensure that the will reflects the testator’s wishes, complies with the law and operates as intended.
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