DIY Wills - A Disaster Waiting To Happen?

Rachel Baseley, associate in the Private Client team, highlights the pitfalls of putting together a will without seeking legal advice  A friend of mine said to me the other day, "I don't know what you solicitors do all day! I've made three wills in my time and I wrote all of them myself, very easily. Why would I pay a solicitor to do something I can do myself?" Why indeed? I wasn't too offended by my friend's comments - after all, it's the sort of thing we solicitors are used to hearing. However, I did wonder whether the wills he had written were really as cost-effective as he thought they were.   Writing a will is one of those jobs where, unless you know exactly what you are doing, it's just too easy to end up with a very different result from the one intended. As recent case illustrates the point perfectly. Webb v Oldfield [2010] EWHC 3469 (Ch) concerned the homemade will of a lady called Pamela Webb. Mrs Webb had three children called Bernard, Harvey and Barbara and in 1995 she decided to make a will setting out how her estate was to be divided between them. Mrs Webb didn't bother consulting a solicitor - perhaps, just like my friend, she thought it was unnecessary as she knew what she was doing. Instead, she purchased a pre-printed will form from a newsagents and filled it in herself. Mrs Webb started her will, quite correctly, by appointing two executors to administer her affairs after her death. The problems started after this because she then went on to say: "2. I give to those below the legacies below. I want Harvey Webb's money protected by the discretion of my executors in view of addiction½I leave Andy Procupieck £200." Immediately after that she wrote: "3. The residue of my estate I give absolutely to Bernard Webb, Harvey Webb and Barbara Oldfield in equal shares ½" When Mrs Webb died in 2003, her daughter Barbara instructed a firm of solicitors to administer the estate which was worth about £275,000. The solicitors distributed a third of the estate to Bernard and a third to Barbara herself, in accordance with the terms of the will. But what should they do with Harvey's share? Should they give it direct to Harvey, as suggested by clause 3 of the will or should they follow the instructions in clause 2 and keep the money "protected" in some way? Of course, the only person who could really answer this question was Mrs Webb herself and she was dead so Barbara was left in a quandary over how to deal with Harvey's share of the estate. By 2010, Harvey had decided to take his mother's estate to court in order to settle the matter. Harvey claimed that the crucial part of the will was clause 3 and that he was entitled to take his one third share of the estate outright. Barbara, in her role as executor, defended the claim and argued that clause 2 of the will imposed a trust over Harvey's third share so that he was not entitled to receive it outright. The judge decided that the only evidence he could consider was that contained within the body of the will itself. He discounted evidence which showed that Mrs Webster's father's professionally drawn will had contained a number of trusts and declined to infer that Mrs Webb had perhaps wanted to achieve something similar in her own homemade will. Instead, the judge emphasised that clause 3 of the will created a clear outright division of the estate into three shares, one for each of the children. He held that the words contained in clause 2 were not sufficiently clear to create a trust or any other sort of protective arrangement. As a result, he ordered that the remaining third of the estate be paid immediately to Harvey. I wonder what Mrs Webb would have said, had she known what the outcome would be? Her seemingly simple DIY will had resulted in a court case between two of her children. Despite her clearly stated wishes, Harvey's inheritance was handed over to him rather than "protected" by the executors. The case was not decided until seven years after her death - seven years during which her children presumably instructed solicitors and barristers in order to argue their different points of view. I don't know what the legal costs of the case were, but I would hazard a guess that, after seven years of dispute, they were many hundreds of times greater than the fee Mrs Webb would have incurred had she instructed a solicitor to prepare her will properly in the first place! Had Mrs Webb come to see me about her will, I would have told her that it was actually perfectly possible to place Harvey's inheritance in trust so as to protect him from himself, if she felt that was necessary. The will would have contained the appropriate wording to create a valid and binding trust and its terms would have been adhered to after Mrs Webb's death. In short, a great deal of heartache could easily have been avoided had Mrs Webb taken proper advice about her will rather than attempting to do it herself. For more information about making or amending a will, please contact Rachel Baseley on 0114 266 6660 or email [email protected]