April King Discusses the ‘DIY Will’ and Why it Simply Won’t Do

There are an incredible number of services these days offering DIY and online Wills services. In principle, the concept seems like a great idea – fill in a few details, your Will is generated, possibly even “checked by a solicitor” and it’s ready to download. What could be simpler?

The problem with this is that the fact-finding session used to generate the Will is based on a simple questionnaire and it presumes the client knows what they want. Clients might think that they know what they want but sometimes discovering the legal or tax consequences of their plans will change their mind. If they don’t sit with a solicitor or an experienced will writing lawyer and discuss their circumstances, a lot can be missed. Further, there’s no evidence recorded that when they made the Will, they had mental capacity. Anything that can be presented which casts doubt on their capacity after their death could be hard to refute without a solicitor’s notes. These simple facts can be used to inform prospective clients who are wavering between using a professional service and filling in a cheap online questionnaire.

In the event of a disputed Will, a solicitor may make his papers available on receipt of a request made pursuant to the principles in Larke v Nugus, even if they are not named as an executor and despite their duty of confidentiality to the Personal Representatives. The Law Society confirmed this guidance in 2018.

Whilst lawyers do not have to respond to a Larke v Nugus request, there can be serious consequences in not doing so, including a costs order made against them (regardless of whether the Will is found to be valid or not), a subpoena requiring the solicitor to attend court and answer questions regarding the Will, or an order under Civil Procedure Rule 31.16 for pre-action disclosure. All of this can have adverse costs consequences.

With a growing number of challenges and the possibility that notes will be scrutinised, lawyers need to ensure that amongst other things, the type of information routinely requested is recorded on will-writing files. All notes need to be contemporaneous and detailed.

Comprehensive notes will help parties to a dispute and ultimately the court to understand the testator’s wishes. By contrast, failure to make adequate notes resulting in loss to beneficiaries could be cause for a professional negligence claim. A checklist could be introduced firm wide to ensure no details are missed.

Larke v Nugus requests may follow the template at Annex E of the ACTAPS Practice Guidance although they do not have to. Some are far simpler, typically seeking to establish the testator’s capacity and to check for the possibility of undue influence. Others are more detailed, such as the precedent on Lexis PSL which includes 14 questions and additional requests for copy documentation. It may be helpful to review these precedents when drafting a checklist.

Clearly none of these steps are covered when using a DIY Wills kit or an online service. These services are unlikely to meet the needs of many, if any, testators.

Find out more about contesting a Will at www.aprilking.co.uk.

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