In a recent case the High Court was asked to determine the validity of a deceased person’s will[1]. During the trial the judge commented that the fact the will had been ‘homemade’ in itself gave raise to some suspicion as to its validity. In the circumstances, the judge later declared the will valid; however, by that time, extensive court proceedings had proved necessary and, most importantly, substantial legal costs had been incurred.
In court proceedings the usual rule is that the winner’s reasonable legal costs are ordered to be paid by the losing party. The purpose of this rule is to dissuade parties from pursuing unreasonable claims and maintaining unreasonable defences. One of the exceptions to this rule arises when cases involve disputed wills. Specifically, where there are reasonable grounds to investigate the validity of a will, the winning party’s costs are likely to be paid by the estate of the deceased rather than by the losing party[2]. For the estate, this represents a ‘lose-lose’ situation: regardless of whether a will is declared valid or invalid, it could bear much of the costs of a dispute.
There is no requirement to involve a lawyer when making a will, and many wills purchased ‘off-the-shelf’ can meet the minimum requirements to be recognised as legally binding documents; however, the circumstances which surround the making of a will are equally (if not more) critical to the prospects of whether a will is held to be lawful and therefore effective. For example, a will cannot be valid if at the time the will was prepared, the testator did not have a standard of mental capacity, was placed under coercion or did not understand its contents. A lawyer will take steps to minimise these risks when preparing a will and often be able to provide evidence as a witness to the circumstances surrounding the will to reduce the risk of challenges ever being pursued. On the other hand, a will made without a lawyer can leave open a number of important questions and give rise to opportunities for challenges to be brought.
A will is one of the most important documents a person can make in terms of the legal consequences it can have. Whilst the potential costs savings offered by homemade wills can prove tempting, such savings can be far exceeded by the expenses arising if a will is challenged.
At rhw we offer competitive fees to help you prepare the right will in the right way. Please contact the author Mark Ridley on or call .
[1] Re Estate of Dorothy Patchett Whelen (Deceased); Royal National Institute for Deaf People and others v Turner [2015] EWHC 3301 (Ch)
[2] See Spiers v English [1907] P122
