Are traditional wills dying out?

Sophie McDonnell from Boyes Turner LLP discusses alternative will options and whether the less traditional methods will become more popular in the future.

Historically, traditional wills prepared by solicitors were the most popular method for people to document their wishes for how their assets would be distributed following their death. However, there are alternative options available now to the public, ranging from professional will writers, charities, banks, online wills, will template kits from stationers and increasingly DIY wills. In this article I consider whether these less traditional methods will replace the need to instruct a solicitor to draft a will.

Recent developments

It has become apparent that the unprecedented times of the last 12 months have forced people to grasp the “new normal” of conducting their lives online. Many of us are working remotely and in our personal and professional lives are conducting video chats with clients or to catch up with family and friends, participating in other household activities and formalities online. This includes the preparation of legal documents.

There are those who may still find comfort in the personal touch and reassurance given by a legal adviser and could find the online methods rather daunting. However, as more and more of us become adept at accessing online interactive facilities, will this drive more consumers to alternative methods of will making?
It is worth considering why the public are making the choice to use these alternative options. Could it be that the interactive platform and will template kits enable people to prepare documents in the comfort of their own home or are consumers driven by a need to save costs?

Even in today’s modern world, preparation of a will by some form of online platform still comes with an element of risk not only the question of validity of the will itself but also what can be and/or should be included in the will. It is therefore essential for the legal profession to continue to educate testators on the importance of bespoke wills tailored to meet an individual’s needs, ensuring their minds are focused on what is important in the long run, rather than the short term financial gain of an online will being cheaper. It is vital that as lawyers we are addressing and alerting consumers to the following pitfalls of a will not being drafted properly:

• Format of wills – Online wills follow a standard template and although this may be fine for straightforward estates, the message needs to make it clear that this will not always be the case, especially for more complex estates. There is also a greater risk that wills prepared without the benefit of legal advice will not be executed in accordance with the provisions of the Wills Act 1837. This could result in a will being held to be invalid.

• Tax Planning advice – Are consumers aware that there could be adverse tax consequences following their death which may be reduced and/or avoided altogether by obtaining legal tax planning advice? Seeking such advice often helps in maximising the value of a testator’s estate.

• Identification of beneficiaries – Alerting consumers that beneficiaries need to be identified correctly in the will will avoid the executors seeking declarations from the court following the death of the testator and incurring additional costs. Doing so will also preserve the value of the testator’s estate for distribution. It is also more likely to ensure that the testator’s estate passes to the intended beneficiaries.

• Disputed wills – Online wills will not offer any advice to consumers regarding the meaning of testamentary capacity and ensuring that the testator has the requisite capacity at the time of execution of the will. They will not spend time meeting with the consumer to read the draft will through and make sure that they understand it. They will not consider whether it adequately reflects their wishes. Nor will an online platform give any consideration as to whether or not the consumer may be making the will as a result of coercion or undue influence from a third party. Importantly, legal advisers can also recognise and advise a consumer on any potential claims that may be made against their estate following their death including, in particular, claims under the Inheritance (Provision for Family and Dependants) Act 1975. Online platforms will not offer such advice which could be of considerable benefit to executors in defending any such claims should the need arise following the testator’s death.

Conclusion

Although digital technology has been adapted to our lives in many ways during the pandemic and in many cases to our advantage, this is not necessarily the case with the preparation and execution of wills. More so than ever the legal profession needs to educate clients about the risks of executing a will other than in the traditional manner. Whilst using a solicitor may involve a little more expense for consumers, opting for an online or DIY will can be a risky business and may well result in greater expense to a testator’s estate following their death.

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