Is a DIY Will Safe?
4 minute read
When it comes to your will, small mistakes can have lasting consequences.
It is a question that comes up regularly, and it is a fair one. Will-writing can be a complicated task, yet will-writing kits are widely available, online form-builders are easy to find, and at first glance, it can seem as though drafting your own will is a perfectly sensible way to save money. For some people, it might even feel like a straightforward task, not much more complicated than filling in a form.
The reality, unfortunately, is more complicated. A will is one of the few legal documents that cannot be corrected after the person who made it has died. If something has gone wrong, by the time anyone discovers the problem, it is too late to fix it. The consequences can fall heavily on the very people you were trying to protect.
This post sets out the main risks associated with DIY wills in England and Wales, so that you can make an informed decision about how to approach this important task.
Table of Contents
What Do We Mean by a DIY Will?
A DIY will is any will that has been prepared without the involvement of a qualified will-drafter or solicitor. This includes printed will-writing kits purchased from a stationer or online retailer, template documents downloaded from the internet, and wills written out by hand without any professional guidance.
There is nothing legally wrong with making your own will. The law does not require you to use a professional. But the law does require your will to meet a number of precise requirements, and it assumes that you know what those requirements are.
Here are the risks that you face.
The Risk of Invalid Execution
In England and Wales, a will must be executed in a very specific way to be legally valid. The rules are set out in the Wills Act 1837, and they have not changed significantly since then. The will must be in writing, signed by the person making it (the testator), and that signature must be made or acknowledged in the presence of two witnesses who are both present at the same time. Both witnesses must then sign the will in the testator’s presence.
If any part of this process is not followed correctly, the will can be declared invalid in its entirety. This is not a technicality that courts are generally willing to overlook. An invalid will cause your estate to be distributed under the intestacy rules instead of according to your wishes, which may produce an outcome that is entirely at odds with what you intended.
There are also important rules about who can act as a witness. If a witness is also a beneficiary under the will, or is the spouse or civil partner of a beneficiary, the gift to that person will generally fail even if the rest of the will is valid. This rule catches many people out when drafting their own wills, often because it seems counterintuitive to exclude a trusted family member from witnessing the document.
The physical handling of the document matters too. Any alterations made after the will has been signed and witnessed must go through their own execution formalities; otherwise, they will not be treated as part of the will. A simple correction made with a pen after signing can introduce ambiguity or invalidate part of the document.
Unclear or Ambiguous Wording
Legal documents use precise language for a reason. When a professionally drafted will refers to “my estate” or “my residuary estate” or “such of my children as survive me,” those phrases have specific, well-understood legal meanings. When a DIY will uses more informal language, the meaning can become genuinely unclear.
Ambiguity in a will does not simply resolve itself. If the meaning of a gift or a provision is unclear, the people dealing with the estate may have to apply to the court for guidance on interpreting the will. That process is slow, expensive, and entirely avoidable. In some cases, a court may conclude that the intended gift has failed altogether, meaning the asset falls into the residue of the estate or, worse, is subject to partial intestacy.
Even small differences in wording can have significant consequences. For example, a gift of “my house” may be interpreted differently from a gift of “my interest in the property known as [address],” particularly if you own more than one property or if the property is jointly owned. A gift to “my children” may or may not include stepchildren or adopted children, depending on how the will is drafted and the family’s circumstances.
Concerned about whether your current will holds up? Our will-drafting specialists can review your position and give you clear, straightforward advice.
Overlooking Alternative Beneficiaries
What happens if a beneficiary named in your will dies before you do? Or what if they are unable to inherit for some other reason? In a professionally drafted will, this is addressed through substitutional or alternative provisions, which specify exactly who should receive the gift instead.
Without those provisions, a failed gift may fall into the residue of the estate, pass under the intestacy rules, or simply create confusion and disagreement among the remaining beneficiaries. The practical result is often exactly the kind of family conflict that a will is supposed to prevent.
DIY will templates do not always prompt you to think about these scenarios, and it is easy to overlook them when you are focusing on the straightforward question of who you want to receive what. But the failure to plan for alternative outcomes is one of the most common and most avoidable causes of problems with homemade wills.
An Increased Risk of Challenges
A will can be challenged on several grounds, including lack of testamentary capacity, undue influence, fraud, or failure to comply with the formal requirements for execution. While any Will can, in principle, be challenged, homemade wills face a noticeably higher level of scrutiny.
Part of the reason for this is evident. When a professional will-drafter or solicitor takes instructions, they follow a recognised process. They assess capacity, ensure the person understands what they are signing, take attendance notes, and keep a file that can be referred to if a challenge is ever brought. That file provides important evidence that the testator was of sound mind, acted freely, and understood the effect of their actions.
A DIY will lacks that supporting evidence. If a disappointed family member later suggests that you lacked capacity when you made the will, or that you were pressured into its contents by someone else, there is very little to counter that suggestion. The will itself may be all that exists, and depending on how it is worded and presented, it may raise more questions than it answers.
The cost of defending a will challenge can be very high. Even an unsuccessful challenge can take years to resolve and can cause lasting damage to family relationships.
Missing Inheritance Tax Planning Opportunities
Inheritance tax planning is not only for the very wealthy. Many estates that fall within the scope of inheritance tax could be managed more efficiently with careful will drafting, but DIY wills rarely take this into account.
Every individual has a Nil Rate Band (currently £325,000) that can be transferred to a spouse or civil partner on death. There is also a Residence Nil Rate Band (currently up to £175,000) available where a residential property passes to direct descendants. If these allowances are not properly addressed in the structure of your will, part of your estate may be taxed at 40% when it could legitimately have been sheltered.
Beyond the standard allowances, a professionally drafted will can incorporate various other reliefs and exemptions, including those relating to charitable gifts, business assets, and agricultural property. A DIY will is unlikely to address any of these considerations meaningfully, which can leave your beneficiaries with a larger tax bill than necessary.
Failure to Address Complex Family Situations
The standard DIY Will template assumes a relatively simple family structure. In reality, many families are not simple, and the situations that benefit most from careful will drafting are often the ones that a template handles least well.
If you have children from a previous relationship and a current spouse or partner, a straightforward will leaving everything to your spouse could result in your children from the earlier relationship receiving nothing, either immediately or in the longer term. This is not a hypothetical concern. It is one of the most common sources of estate disputes, and it requires specific, tailored drafting to be properly addressed.
If your partner is not your spouse or civil partner, they have no automatic right to inherit under the intestacy rules, as we noted earlier. A DIY Will might appear to address this, but if it fails for any of the reasons set out above, your partner could be left in a very difficult position.
Trusts can be an important tool in a range of situations, including providing for a vulnerable beneficiary, protecting assets from future care home fee assessments, and ensuring that assets benefit the right people in the right sequence. DIY wills do not generally lend themselves to trust drafting, which requires precision and an understanding of the relevant legal framework.
So Is a DIY Will Ever Safe?
It would not be fair to say that a DIY will is never valid. Some homemade wills are executed correctly and achieve the person’s intent. But the question is not simply whether a DIY Will might work. It is whether the risk of it not working is one you are comfortable accepting, given the consequences.
The consequences fall not on you, but on the people that you are trying to provide for. They are the ones who will have to deal with an invalid document, an ambiguous gift, an unexpected tax bill, or a contested estate. They may find themselves in dispute with other family members at a time when they are already grieving.
For the vast majority of people, the cost of having a will professionally drafted is modest relative to the value of the estate it covers and the cost of the problems it prevents. The peace of mind that comes with knowing your wishes are clearly recorded, properly executed, and legally sound is difficult to put a price on.
How We Can Help
Our will-drafting service is designed to be straightforward, accessible, and thorough. We take the time to understand your circumstances, ask the questions that need to be asked, and make sure that your will reflects your wishes clearly and precisely.
Whether your situation is straightforward or more complex, we can help you put the right arrangements in place.
Frequently Asked Questions
Is a DIY will legally valid in England and Wales?
A DIY Will can be legally valid in England and Wales, but only if it meets all of the requirements set out in the Wills Act 1837. The will must be in writing, signed by the person making it, and witnessed by two independent witnesses who are both present at the same time and who both sign the document in the testator’s presence. If any part of this process is not followed correctly, the will can be declared entirely invalid, and the estate will be distributed under the intestacy rules instead.
What are the risks of writing your own will?
The main risks of writing your own will include invalid execution, unclear or ambiguous wording, failure to cover all assets through a residuary clause, failure to name alternative beneficiaries if a named beneficiary dies before you, a higher risk of the will being challenged, and missed inheritance tax planning opportunities. DIY wills also tend to handle complex family situations, such as blended families or unmarried partners, less effectively than professionally drafted wills.
Can a DIY will be challenged?
Yes. A will can be challenged on several grounds, including lack of testamentary capacity, undue influence, fraud, or failure to comply with the formal execution requirements. Homemade wills face a higher level of scrutiny because they lack the supporting evidence that a professional will-drafter creates, such as attendance notes, capacity assessments, and a formal file. Without that evidence, it can be more difficult to defend a challenge, even where the testator’s intentions were entirely clear.
What happens if a will is invalid?
If a will is declared invalid, the deceased’s estate is distributed as if no will existed. This means the intestacy rules apply, which set out a fixed order of inheritance based on family relationships. The result may be entirely at odds with the deceased person’s wishes. For example, an unmarried partner has no automatic right to inherit under the intestacy rules, and children from a previous relationship may receive a share the deceased did not intend for them.
What is a residuary clause and why does it matter in a will?
A residuary clause is the provision in a will that deals with everything not specifically mentioned elsewhere. Without it, any asset that is not expressly covered by a named gift may not be disposed of by the will at all, resulting in partial intestacy. A residuary clause also ensures that assets acquired after the will was made are covered. DIY wills frequently omit or inadequately draft this clause, which is one of the most common causes of problems with homemade wills.
Do I need the assistance of a will-drafter to make a will?
The law does not require you to use a solicitor or a professional will-drafter to make a valid will. However, a professionally drafted document will significantly reduce the risk of it being invalid, ambiguous, or incomplete. A professional will-drafter will also ask the questions needed to identify inheritance tax planning opportunities, alternative beneficiary provisions, and trust structures that a DIY template is unlikely to prompt. For most people, the cost of professional will-drafting is modest relative to the value of the estate and the problems it prevents.
Can a witness to a will also be a beneficiary?
No. If a witness to a will is also a beneficiary or is the spouse or civil partner of a beneficiary, the gift to that person will generally fail, even if the rest of the will remains valid. This is one of the rules most overlooked in DIY wills, because it can seem natural to ask a trusted family member to act as a witness. Witnesses should always be independent individuals who receive nothing under the will.
What is partial intestacy?
Partial intestacy occurs when a will is valid but does not deal with all of the deceased’s assets. The assets not covered by the will are distributed under the intestacy rules, which may not reflect the deceased’s wishes. Partial intestacy most commonly arises where a will lacks a proper residuary clause, or where a specific gift fails, and there is no substitutional provision to direct where the asset should go instead.
Are DIY wills a good idea for complex family situations?
DIY wills are generally not well-suited to complex family situations. Standard templates assume a straightforward family structure and do not readily accommodate issues such as children from previous relationships, unmarried partners, vulnerable beneficiaries, or assets that require trust arrangements. These are precisely the situations where careful, tailored professional drafting is most valuable, and where the consequences of getting it wrong can be most serious.
Disclaimer
This article is intended as general information only and does not constitute legal advice. The information refers to the law of England and Wales. Tax thresholds and legal rules are correct at the time of writing but are subject to change. We recommend that you seek professional advice regarding your own circumstances.
Bio
This article was written by Stephen Rhodes. Stephen was called to the Bar of England and Wales in 1999 and brings over 25 years of in-house experience working with solicitor firms across the Manchester area, with a specialism in Wills and Probate. He now focuses exclusively on will drafting, helping his clients ensure their loved ones are taken care of exactly as they would wish.