How Do I Make A DIY Will Legally Binding?

In England and Wales, it is perfectly legal to make a Will yourself. There are no rules that say you must make a Will through a solicitor.

By Safia Iftikhar - 22nd December 2021

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A homemade Will is legally binding if it follows the formalities set out in the Wills Act 1837. Namely, it must be signed and properly executed (meaning witnessed). The danger with a homemade Will is that its validity won’t be put to the test until you die – by which point, it is too late.

The laws regarding homemade Wills 

In England and Wales, it is perfectly legal to make a Will yourself. There are no rules that say you must make a Will through a solicitor.

However, if you want the Will to be legally binding (which you obviously do), then it must adhere to Section 9 of the Wills Act 1837. This states that the Will must be:

  • In writing
  • Signed by the testator (meaning the person making the Will) in the presence of two witnesses
  • Signed by two witnesses in the presence of the testator

If the testator cannot sign, then someone else can sign on their behalf, but this must be done in the presence of the testator and the witnesses. It must also be done at the testator’s direction. There are also strict rules around who can be a witness.

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Mistakes in DIY Wills

Provided your Will meet these formalities, then it should be legally binding. However, lots of DIY Wills don’t meet the necessary criteria. Our solicitors see plenty of Wills which have been made at home or purchased from a shop, and many of them contain mistakes. The result is that the whole Will is invalid, or at best, a gift to a particular person fails.

We also see DIY Wills which cause a lot of confusion. One example is where a Will has not been dated. Surprisingly, this does not invalidate a Will. However, it can lead to problems when trying to implement its terms. So, a gift in an undated Will to “my wife” may lead the Executors to ask: “which wife?”.

We also come across Wills that fail to:

  • Appoint an Executor
  • Protect the estate from a claim by a family member who has been excluded
  • Deal with all the assets of the deceased due to the lack of a mopping up clause of the residuary estate, leading to a partial intestacy

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Mistakes aren’t uncovered until after death

Lots of “write your own Will” services have glowing reviews online. However, the Will cannot be tested until that person has passed away, at which point a number of problems may arise. If so, then the positive review seems a little premature – and entirely unfounded.

That’s the thing with homemade Wills – they're not reviewed by a professional. This means you cannot know if your Will is valid or if your tax position is secure. You may be surprised by the mention of tax, but actually, a well-written Will can reduce the burden of Inheritance Tax on the estate.

Homemade Wills, on the other hand, can inadvertently create Trusts. This will increase the administrative burden on the Executors, as it may be necessary to register with HMRC’s Trust Registration Service. If that Trust is not managed professionally, there could be penalty payments and tax charges in closing it down.

So, DIY Wills can be legally binding if you follow the rules, but those dealing with your estate may come to see it as a false economy.

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