You Don’t Know What You Don’t Know – Why DIY Wills are Risky Business
The pandemic has meant that during lockdown, more people have turned to writing their own Wills using online templates or proforma Wills from stationery shops. In this article, I refer to both of these documents as DIY Wills.
It’s quick and convenient to make a DIY Will but is it ever really a good idea? There certainly appears to be demand for it despite the inherent risks associated with them; risks which consumers are mostly unaware of.
In the DIY Wills market, you aren’t properly advised on how best to make your Will. Whilst the online proforma is reviewed by an expert, they are there to check the legal wording of the document and not to determine whether the document reflects the client’s personal and financial circumstances appropriately.
In addition to this, there is an alarmingly low level of safety measures in place when drafting a DIY Will. Firstly, how does the expert know that the Will maker is who they say they are, if they have never met in person? Secondly: what about capacity assessments? How is the expert able to check whether or not the person writing the Will has the requisite mental capacity to do so? It’s clear that the DIY process is wide open to abuse. Lastly, , there is no guidance or explanations as to what the Will writer needs to enclose to ensure that their Will is not challenged, especially in the case whereby something unusual is being stipulated, which may need protecting with letters of intent and/or medica reports. As we know, DIY Wills are too frequently and successfully challenged.
Many people perceive Will writing and their personal circumstances to be simple. When a cheap or free option is on offer, it is not surprising there is some consumer demand for it. However, it completely dumbs down the expertise and experience that the legal professional offers clients. Advice means clients making informed decisions about executorship, guardianship, the vesting age of minors, inheritance tax planning, protection of vulnerable beneficiaries, distribution of chattels and funeral wishes. Protection and tax planning can be dovetailed.
The complexities may not be recognised as being complex by the consumer. A non-exhaustive list of complexities can arise where there are:-
- high value assets;
- foreign property ;
- vulnerable beneficiaries;
- taxable, business or agricultural assets;
- financial dependents other than immediate family;
- complex wishes regarding distribution;
- complex ownership of assets ; and
- estranged family members.
When a person chooses to make a DIY Will, there is no comeback if they get it wrong. People are enticed into making DIY Wills because it appears to be simpler and cheaper; but in reality, this could cost their beneficiaries much more in the future – especially if the matter escalates to litigation.
Will writing is an unregulated activity and the protection consumers get varies enormously. Solicitors are regulated by the SRA and are insured. Members of the Institute of Professional Will Writers and Society of Will Writers should adhere to codes of practice and as part of that must have insurance in place. There are many unqualified, unregulated and uninsured Will writers out there.
Consumers using online templates may appoint the Will writing company as the executor. How are they to know they don’t have to or that the Will writing company may charge fees for their service?
Perhaps making a DIY Will can be likened to going to a very cheap hairdresser. There is no appointment necessary, no queue and yes, your hair will be shorter but ultimately you will have to get a better hairdresser to straighten your fringe. It’s true to say that Contentious Probate teams are seeing an uptick in business and some of this is fed by DIY Wills.
Our challenge as professional advisers has to be to get the message out there about the difference between a bespoke and a DIY Will. Consumers need to be aware of the limitations of the latter.
Many of us provide a free Will review service. Perhaps now is an opportunity to somehow target people who have taken the step of making a DIY Will during the pandemic. They may want to think about reviewing it with a properly qualified lawyer, who is preferably a member of SFE and STEP.
The art of Will writing lies not in producing a legally valid document but in knowing your client. The proforma template approach appears a cheap solution to the unwary consumer. They don’t know what they don’t know. Any legally qualified person checking the Will doesn’t know what they don’t know about the client. There is little consumer protection and it is a pity that Will writing is not, as yet, a regulated activity.
DIY Wills made on paper or online are a risky business both for the consumer and the service provider but mainly for the consumer.