The ways in which we shop, work and maintain relationships have changed drastically due to the outbreak of Coronavirus and the physical distancing rules in place. The ways in which we can ensure our personal affairs are in order are also affected.
We recently posted an article about the logistics of taking advice and having your Will signed in the safest and most appropriate way. Although the rules regarding the signing of your Will have changed slightly, the requirement for legal advice to ensure your wishes are taken care of and your Will is valid remain of the highest importance.
Why a do-it-yourself Will is the most dangerous kind of DIY
Many people have been using this time at home to carry out all the jobs that have been put off and are turning their hand to DIY. Fitting a new kitchen or bathroom, is not something many of us try to do ourselves. Instead we're happy to leave it to the professionals.
Many, however, are happy to prepare a DIY Will instead of engaging a solicitor. This often has unintended consequences, most notably the Will not being recognised as valid and the individual being treated as though they died intestate (without a Will).
Even without the current barriers to the usual method of the preparation of Wills in place, in homes throughout the country many invalid or out-of-date homemade Wills are waiting to cause issues for the surviving family; resulting in disappointed beneficiaries and large legal fees. With this in mind, what are the common pitfalls with homemade Wills, and how can these be avoided?
Detailing specific items
As individuals we tend to think of the specific items we have in our estate - car, house, bank accounts etc. Homemade Wills usually detail specific items individuals are to receive, but don't then deal with all the other assets in the estate. We can guide you through all aspects of your estate planning, dealing with your estate as a whole, with appropriate wording within the Will.
Beneficiaries that do not survive you
Legacies left to individuals who have died before you will simply fall on your death. The legacy will not automatically be passed to their children in their place; generally it is only where specific wording is included within the Will that children will receive in place of their predeceasing parent.
In Scotland a beneficiary is entitled to receive their share of an estate at age 16. Many think that a surviving parent will look after the funds for a child until they are much older than 16, perhaps until they are 21 or 25. However, unless a Will contains any such trust provisions allowing funds to be held for young beneficiaries then their share can only be held by a surviving parent or guardian until they are 16, and then it must be made over to them at that point. Also, unless a Will details who is to be appointed as guardian to children under age 16, then it would be for surviving family members and friends to make such a decision as to who would apply for guardianship and go through the necessary formal process.
Signing of the Will
For a Will to be valid In Scotland, it needs to be signed on every page and there must also be one independent adult witness who also signs on the last page. Prior to the Coronavirus outbreak, this was usually a straightforward task. For many, having an impartial witness physically present with them at the time of signing will be impossible. Therefore, the Law Society of Scotland has suggested that a Solicitor can act as witness to a video call provided they are not excluded from acting as witness by virtue of being a nominated executor personally or as a director of a Trust Company.
As long as the solicitor has witnessed the testator (the person making the Will) sign on every page, they can then legitimately sign as witness, completing the signing details, provided it is done so immediately after receiving the document signed by the testator. The video of the testator signing with the solicitor viewing as witness would then be stored as evidence of the proper execution of the Will.
Avoid the problems caused by homemade Wills - we're here to help
Having your Will prepared by an experienced solicitor will allow them to think of all the things you may not have considered and draft your Will in a way that fully reflects your wishes. You will also have the peace of mind that your Will is valid – a certainty in uncertain times.
We're here to help
If you would like to discuss making a Will or to ask what could happen in your own situation if you were to pass away intestate, please contact our private client team using the form below or call one of our offices on:
Elgin: 01343 542623
We have solicitors and offices across the country in Glasgow (next to Glasgow Central Station), Edinburgh (next to Haymarket Station), Inverness, Thurso, Elgin and Shetland, ready to help in person or over the phone.
We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.