Is a homemade handwritten will legal?
06 May 2021
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, as long as it's been properly drafted and meets the legal requirements. But there are potential risks of writing your own Will.
If you write your own Will, without help from a professional Will writer, make sure you know what's required in the eyes of the law. Homemade 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 the Wills Act 1837. This says 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 correctly, it won't have been executed correctly and it won't 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.
Expression of intention in a homemade Will
The signing and witnessing of the Will is only half the issue with homemade Wills. Another challenge is knowing 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. This issue has come up in court before, and it was decided that a handwritten Will can only be recognised if it contains a fixed, final and deliberate expression of intention about the disposal of property upon death.
In addition, for someone to make a Will they need to have what's called 'testamentary capacity.' This means that they need to fully understand what they're doing and the implications of it. If there is any doubt as to whether someone had testamentary capacity at the time of making their Will, then it could be challenged. This risk can be easily overlooked when someone makes a DIY Will.
The importance of avoiding ambiguity
The next issue with a DIY Will is that clear, correct terminology and language needs to be used, that avoids any ambiguity. Even if you make it abundantly clear that this handwritten document is your Will and it complies with 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 because he no longer owned 28 Acacia Avenue, 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 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 invalid?
If the validity of a DIY Will is questioned 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 of inheritance that gets passed on.
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 put the person's relatives in an order of priority, starting with their spouse, then their children, and so on. Certain family members, such as unmarried partners and step-children, are not recognised at all by these rules, so they could be entitled to receive nothing.
Get 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. A poorly drafted or incorrectly executed Will can be found to be 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. With the right advice you'll get peace of mind that you're not inadvertently creating issues for your loved ones in the future.
Co-op Legal Services provides advice, guidance, and fixed fees on all of our Wills so you'll know the cost before any work starts. In addition, you can start making your Will online.
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.