As estate planning practitioners we obviously meet a lot of people who need a Will. Some have never had a Will at all, some have made a Will a long time ago and it is in dire need of updating and some people have attempted to write their own Will, with varying levels of success, and want a second opinion. Whatever the case may be, one thing we are commonly asked is “Why do we need to use you, when we can buy a DIY Will writing pack from WH Smith and write our own Will?”
The simple answer is, when you feel ill you don’t diagnose yourself, you go and see a doctor. In other words, there’s nothing like seeking professional help when important decisions need to be made and the expertise that specialist Will writers like us can offer you is not something you will find anywhere in a DIY Will pack.
What can go wrong?
An example of the importance of seeking professional advice is the case of a married couple who wrote “DIY” Wills in 2000. They were told by a friend to make sure the Wills were “mutual”. They didn’t actually know what “mutual” Wills were, but thought it sounded like the right thing to do. The couple duly made “mutual” Wills in which they left everything to one another on the death of the first of them, then the majority of their estate went to their two daughters, with some smaller gifts to other beneficiaries.
In 2001 the man of the couple passed away, leaving his entire estate to his wife. Over the next few years the woman gave significant sums of money to each of her daughters to help them with loan repayments, mortgages and so they could clear other debts.
In 2009 the woman made a decision that, as her daughters had pretty much received their respective inheritances during their lifetime, she would make a new Will leaving the majority of her estate directly to the three grandchildren that had been born since her late husband had passed away, with a token gift to her daughters.
When the woman died in 2014 she did so in the knowledge that her 2009 Will would benefit her grandchildren, having already resolved the financial problems that each of her daughters had got themselves in to during her lifetime. However, having gone through their mother’s personal effects following her death, the daughters found not only her 2009 Will which made only a small gift to them both, but also the “mutual” Will she had made in 2000. They saw that they were due to benefit far more from the “mutual” Will and sought professional advice as to what a “mutual” Will was. They learned that a “mutual” Will is made by two people who agree not to update their Will without the knowledge of the other person. Crucially when one of the people dies, the other cannot change their Will.
When the case went before a judge, he found that the 2000 “mutual” Will was still valid and that the Will written in 2009 should therefore be disregarded. The daughters had won and received the vast majority of their late mother’s estate under the terms of the 2000 “mutual” Will.
What should have happened?
Our unerring recommendation is to seek professional advice before you make a Will. It is not the case that “mutual” Wills are a bad thing, but they generally only work in very specific circumstances. We would certainly have advised against the couple in our example making “mutual” Wills and this would have avoided the issues that were caused by them having done so. Had the couple written Wills more appropriate to their situation, there would have been no problem with the woman writing a new Will following her husband’s death and it would not have been vulnerable to a challenge from her daughters in the same way that her “mutual” Will was.
If you would like to meet with one of our Consultants to discuss any of the issues raised here or any other Estate Planning topic please telephone 01732 868190 or get in touch with us via our enquiry form.