Is a homemade handwritten will legal?
19 November 2020
By Head of Wills, Solicitor, James Antoniou
In short, yes, it's possible for a homemade, handwritten Will to be legal in England and Wales, provided that it has been properly drafted and meets the legal requirements. There are, however, a number of potential issues to consider if you write your own Will.
If you write your own Will, without the assistance of a professional Will writer, make sure that you understand what's required in the eyes of the law. Homemade or DIY Wills are often poorly drafted, contain mistakes or are incorrectly executed. As a result, they are commonly found to be invalid or ineffective after death.
Handwritten Wills are known as 'holograph' Wills. From a legal perspective, a holograph Will must be executed in accordance with the requirements of the section 9 of Wills Act 1837 which, in general terms, provides that the Will must be:
"Signed by the testator (the person making the Will) with the intention of it giving effect to their Will in the presence of two witnesses, who each sign the Will in the presence of the testator."
If the DIY Will is not signed and witnessed in the correct way, then it will not have been executed correctly and will not be legally valid.
Following a change to the law during the coronavirus pandemic, it is now possible to have a Will witnessed via video link (instead of in person). This does present challenges of its own though and should only ever be used as a last resort. For more information, see How to Video Witness a Will.
The signing and witnessing of the Will, however, is only half the issue because how does one distinguish whether a hand written piece of paper is a person's intended Will, or just a signed piece of paper with some thoughts written down? Well case law has provided that it won't be considered a testamentary document unless it contains a fixed, final and deliberate expression of intention as to the disposal of property upon death.
In addition, you need to have what's called 'testamentary capacity' to make a Will which means that you need to fully understand what you're doing and the implications of it. If there is any doubt as to whether you had testamentary capacity at the time of making your Will, then your will could be challenged. This possibility can be easily overlooked when someone makes a DIY Will.
The importance of avoiding ambiguity
The next issue with a DIY will is that you need to use terminology and language that is clear and avoids ambiguity in the eyes of the law. Even if you use wording that makes it abundantly clear that you want the handwritten document to be your Will and that you make sure that it complies with s.9 of the Wills Act, it still needs to clearly state your wishes and use the correct terminology.
Here's a simple example. Stephen is 60 years old and has 3 children. He lives on his own at 28 Acacia Avenue which worth £200,000 and is his only real asset of any value. He decides to write his own Will rather than taking professional advice. His main intention is to leave his property to his daughter Julie who he is closest to, and divide the rest of his estate between his other two children. He prepares a DIY Will himself, making it clear that this is his Will and includes a statement saying:
"In the event of my death I give my house 28 Acacia Avenue to my daughter Julie."
This document is then signed and witnessed in accordance with the requirements of the Wills Act and he puts the Will in his safe at home. Over the next 10 years, Stephen's health deteriorates so he needs to move closer to the family. He sells 28 Acacia Avenue and buys another property 19 Warren Road which is near to where his daughter Julie lives.
When Stephen dies his Will is found by his children. The terms of the Will creates a dispute between the children. Given that Stephen no longer owned 28 Acacia Avenue at the time of his death, Julie said that it was clearly her dad's wish that she should be given 19 Warren Road. Whereas the other two children say that as he no longer owned 28 Acacia Avenue then Julie should get nothing.
If we could travel back in time, what do you think Stephen would have wanted? Julie to receive 19 Warren Road or for her to receive nothing from his estate? Based on these circumstances I think it's fair to say that Stephen would have wanted Julie to receive 19 Warren Road.
Unfortunately the law would interpret the words used in his Will differently and Julie would not be entitled to anything. This leaves Julie in the unenviable position of either accepting the loss of her inheritance or incurring vast legal expenses taking the matter to Court.
So, what could Stephen have done differently when making his Will to prevent this scenario from happening? Well, if Stephen had taken professional advice and discussed his intentions with a Will writing expert, he would most likely have been asked whether he wanted the gift of 28 Acacia Avenue to Julie to be extended to include 'such other principal residence that I may own at the date of my death". If these 14 words had been included in Stephen's will it would have solved the entire issue and Julie would have inherited 19 Warren Road.
What happens if a DIY Will is found invalid?
If the validity of a DIY Will is called into question after death, or if some of the Will is ambiguous, then this can result in lengthy and expensive legal disputes for the family. This could significantly reduce the value of the estate and the amount available for distribution.
If the Will is found to be invalid altogether, then the estate will be dealt with in accordance with the previous Will that was in place or, if there isn't a previous Will, in line with inheritance laws called the Rules of Intestacy. These rules determine who is entitled to administer the estate as well as who is entitled to inherit from it.
The Rules of Intestacy place relatives of the deceased in a strict order of priority, starting with the deceased's spouse, then the deceased's children, and so on. Certain family members, such as unmarried partners and step-children, are not recognised at all by the Rules of Intestacy, so could be entitled to receive nothing from the estate.
Seek professional advice
These are just some of the many issues that can arise from homemade and handwritten Wills. We would always recommend seeking advice from a professional Will writing service if you are in any doubt and are planning to write your own Will, as a poorly drafted Will can be deemed invalid or ineffective after you die.
Writing a DIY Will is a risky business if you're not an expert in this area of law and with the right advice you'll get peace of mind that you're not inadvertently creating issues for the loved ones you leave behind.
Co-op Legal Services provides advice, guidance, and fixed fees on all of our Wills so you'll know exactly what the cost will be upfront before any work starts. In addition, you can start making your Will online right now or at any time, 24 hours a day, 365 days of the year for maximum convenience.
When you make a Will with Co-op Legal Services, we will offer to store your Will for you, free of charge, for the rest of your life. We will also send you a copy that you can keep for your own records.