Disputing a homemade will
Homemade DIY wills are well known for creating legal confusion. In this article we look at the risks of homemade wills and how they can result in legal disputes. We are experienced in dealing with disputes arising from homemade wills and are happy to provide a free review of your case. Just call freephone 0808 139 1599 or send us an email.
It is no doubt the case that for many people, cost is at the forefront of their mind when they decide against using a solicitor to create their will. An ‘off the shelf’ will writing pack is cheaper than using a solicitor to do the job; though the differential is possibly not as much as some people assume. But any savings that can be achieved may well be eclipsed by the cost of legal action if the will is later disputed or the need for judicial clarification arises.
If the terms of a will are unclear or ambiguous, the risks of a dispute rise considerably. Executors may have to resort to asking the court to rule on its meaning before they are able to administer the estate. Just this situation arose in the recent case, where the testator, Mr Aleksic, died leaving a homemade, handwritten will. The estate was valued at £2,750,753 for probate purposes and included property in the UK as well as a house in Montenegro. Mr Aleksic had been born in Montenegro and relocated to England following the Second World War. He remained domiciled in England at the time of his death.
The will was signed and witnessed, but had not been dated and did not contain an attestation clause. One of the witnesses therefore had to provide an affidavit detailing the circumstances in which the will was signed and witnessed before the Probate Registry could grant probate. The will did not name an executor although it did appoint a senior bishop of the Serbian Orthodox Church to “be in charge”. The Probate Registry did not accept that this amounted to an executor appointment and so a friend of Mr Aleksic and a solicitor applied for a Grant of Letters of Administration in the absence of an executor.
Further problems arose because of the wording of the will itself. Mr Aleksic’s English was not perfect and the court identified that there was faulty grammar, spelling errors and misplaced punctuation within the will. More problematic was the uncertainty caused by the wording of several of the gifts. A legacy of £10,000 to “Brit. Cancer Research” was uncertain as no such organisation existed. The amount to be given to another beneficiary had been obliterated and replaced without any indication of whether the change had been made before or after the will had been signed.
A gift of Mr Aleksic’s houses raised several more difficulties as it was unclear whether the gift was supposed to be to the Serbian Orthodox Church itself or to be held on trust by the church for the benefit of people in need in Kosovo. The beneficiary of the gift to the “Serbian Orthodox Church” was ambiguous as there were several different emanations of the church which could be meant. The intended role of the Bishop who was said to “be in charge” of benefiting the people of Kosovo was also problematic as was the attempt to apply English law to the property in Montenegro.
The court addressed all of the issues in the will enabling the personal representatives to administer the estate. But to get to that stage the personal representatives had to issue court proceedings and go through the litigation process. The legal costs involved were most likely payable by the estate and could well have run into the tens of thousands. These costs could have been avoided if Mr Aleksic had taken professional advice instead of preparing the will himself.
If you are considering making a Will it is undoubtedly worth thinking about whether you would rather incur the relatively minor cost of using a solicitor or risk your beneficiaries potentially losing out on a large part of their inheritance when the courts have to determine what you intended your Will to achieve.