The Dangers of a Homemade Will

A recent case our estate team have dealt with presented a stark reminder and warning about the importance of having your Will prepared by a solicitor.

In the estate in question, the deceased left a homemade Will, and due to various deficiencies in the document, the Court originally did not accept this as a valid Will and sought to treat it merely a letter of wishes. However, it was clear that the deceased’s belief was that her Will had been in place and legally binding.

As the Court initially declined to accept the homemade Will as legally binding due problems with its wording, and a lack of a signature on each page, we had to set about the task of demonstrating its testamentary effect. As a starting point we reviewed the prior case law, but no prior cases were in point. Due to the complexity of the situation we then required to obtain the opinion of Counsel (an advocate) to explore ways to potentially overcome the problems with the informal document.  This added both an additional cost to the estate and caused a significant delay in the process of the estate administration.

We worked with Counsel, the family and witnesses to obtain a family tree, and statements to allow a full Opinion to be provided and to identify the best way forward.   It took around six months to contact all the relevant parties, make the necessary inquiries and produce all the necessary information. 

The eventual remedy was to make application to the Sheriff for what is known as a Petition for Special Warrant to issue Confirmation. This involved submitting  Affidavits of all those close to the deceased with knowledge of her testamentary intentions and those who had direct involvement at the time of the signing of the informal will. In the same application we also sought to cure the formal defects in the will under the Requirements of Writing (Scotland) Act 2005.   Sheriff ultimately decided the letter of wishes could  be treated as a formal Will and we had sufficiently proved that the terms of the Will, and that the Will had testamentary affect. However, prior to granting Confirmation the Sheriff raised several further queries and required additional information on the background of the creation of the Will.

The timescale was unknown at the start of the process, due to the novelty that this situation presented. The overall timescale for the process of having the Will accepted and to complete Confirmation took in the region of eighteen months, and the cost implications had to be met by the estate. Whilst cost varies in these situations, such unnecessary expense to the estate can be avoided entirely if a will is drafted professionally by a solicitor, and executed under their guidance.

This example serves to demonstrate the perils of a Homemade Will. These are notoriously complicated, risky and can leave your estate in a dangerous position, open to being mishandled or distributed other than in accordance with your wishes if not accepted by the Court.  Leaving your last instructions to chance in that they may or may not be accepted, could create stress, concern and upset to your family when they are already in the grieving process. The Court is not guarantee to accept a homemade Will if the testamentary effect cannot be established.  

Making your Will is one of the biggest decisions you will make in your life – do not risk any ambiguity surrounding your Will! 

Please do not hesitate to contact our specialist team of Private Client Lawyers  who will deal with your case in a confidential and sensitive manner.

If you would like further information, please contact our specialist team by calling 0141 429 8166, or fill out our online enquiry form.