DIY Wills: Possible but Problematic
The recent case of Wilson v Lassman discussed issues which can arise when people don’t follow the typical formalities when drawing up a will. The informal DIY nature of the will in question resulted in a lengthy and expensive legal process when the will was challenged. However, the case also demonstrates how the location of the drawing up and signing of the will is irrelevant.
The Basics of making a will
When drawing up a will there are legal formalities which must be abided by. These formalities are found in s9 of the Wills Act 1837 and are as follows:
- The will must be in writing.
- The will must be signed by the testator (or someone in his/her presence and direction).
- The testator must intend by his/her signature to give effect to the will.
- The will must be made or acknowledged in the presence of two or more witnesses at the same time.
- Each witness must either sign or attest the will or acknowledge his/her signature in the presence of the testator (but not necessarily the presence of any other witness).
Whilst all of the above must be taken into consideration upon writing a will, the same cannot be said for where the drafting should take place – or indeed where the will should be signed and witnessed.
The Facts of Wilson v Lassman
The case concerned the will of a Mr Gerald Wilson. The will was not drawn up by a solicitor in the typical fashion, but by Mr Wilson himself without legal advice. Once completed, he signed the will and called upon two witnesses to come and do the same. The executors both came to Mr Wilson’s house and signed and witnessed the will upon the bonnet of his car. For all parties, this seemed to be the end of the matter.
Some 4-5 years after Mr Wilson’s death, his estranged son, Mr Paul Wilson, caught wind of his father’s passing and sought to bring an Inheritance Act claim as he had not benefited from the will. The claim under the Inheritance (Provision for Family and Dependants) Act 1975 failed as the statutory time limit had expired. Undeterred, Mr Wilson changed the nature of his claim to dispute the validity of the will on the grounds that the execution of the will was not satisfactory in the eyes of the law.
Firstly, issues arose regarding Mr Wilson’s signing of the will as his executors were not present to witness this.
Secondly, when investigating the execution of the will, investigation officers found inconsistencies with the executors’ accounts. At one point, the first witness said that the second witness was not present when they signed the will. The second witness always claimed that both witnesses were present when the will was signed.
Finally, the fact that the will was signed outside and on the bonnet of a car was called into question, so the court looked at whether this affected the validity of the will.
It was established that Mr Wilson did not sign the will in the presence of his executors but did so prior to their arrival at his house. This was potentially problematic. However, it was found that this did not invalidate the will as he did ‘acknowledge’ both the will and his signature in their presence.
Regarding the witness statements, when the case arrived at trial it was found that the first witness had mentioned to an investigation officer that he had to attend a hospital appointment at a memory clinic. It then came to light that he suffered with memory loss stemming from his dementia. This information accounted for the mistaken recollection about whether both the witnesses were present at the same time.
Finally, the court found that the location where the will was signed did not matter. What does matter is that the legal formalities included in the Wills Act are followed - and this was the case here.
In light of the above, the court was satisfied that, although unconventional, the will was executed properly and Mr Paul Wilson’s claim failed.
Seeking Advice about drafting your will
As seen above, it is possible to draft your own will, have it signed in an informal setting, and still meet the legal requirements for the document to remain valid. However, this is not ideal for many reasons. The decisions made in the case in question resulted in a lengthy process racking up legal costs for those involved. Had Mr Wilson visited a solicitor or will writer he would have received advice and potentially prevented the course of events outlined previously. Should you find yourself contemplating writing your own will or in a similar position to the one discussed, it would prove vastly beneficial in the long run to seek some professional legal advice. If you don’t want to leave your loved ones in an unwanted legal position once you have passed don’t hesitate to contact us!