The Dangers Of DIY Wills

The popularity of DIY will kits has arguably led to a significant increase in work for contentious probate solicitors.

For a will in England and Wales to be valid, it must be in writing and signed by the person making the will (the testator), in the presence of two independent adult witnesses.

Where there is no valid will, a person's estate will pass under the intestacy rules on their death. These are government-prescribed rules setting out who should inherit, dependent on which family members survive the deceased, and can be at odds with how the deceased would have intended their estate to pass.

For example, for a spouse with a young child whose estate is worth £1m, the surviving spouse would inherit £625,000 plus personal possessions, and the child would inherit £375,000 at age 18. Not only does this create an inheritance tax problem, it also means that the child has access to significant funds at an early age. Writing a will is nearly always preferable to relying on the intestacy rules.

Revocation

An often overlooked point is that a will is revoked when a testator marries, unless it is drafted so as to be made 'in contemplation' of a forthcoming marriage. Strangely, divorce does not revoke a will, but the divorced spouse will be treated as if they had died, which may have unintended consequences. Testators in either case should remember to review their wills in these situations.

It is surprisingly common for wills to be accidentally revoked where a testator makes their will in the UK and subsequently makes a will in a foreign country intending to deal with their assets situated there. Unless the foreign will expressly states so, it will revoke the UK will. It is therefore important that UK and foreign legal advisers have a joined-up approach.

European assets

The law of succession differs across EU states - for example, countries such as France and Spain have 'forced heirship', where a fixed percentage of assets must pass to a spouse, child, or other relative, whereas, under the law of England and Wales, individuals can leave their estate to whomever they wish. Foreign law can take precedence over the provisions of an English will where the testator has foreign connections, meaning that foreign assets might not pass as the testator intended.

In an attempt to avoid conflicts of succession law in EU states, the European Union Succession Regulation (known as Brussels IV) came into force on 17 August 2015. Brussels IV allows a testator to...