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Asset protection: Sometimes where there's a will there's not a way

There's been an explosion in firms touting DIY will-writing kits in recent years - but they can create more problems and pitfalls, as well as failing to safeguard family assets.

Most of us understand why we must have a will and many may have heard horror stories about what happens if not - with all assets passing to the Duchy of Cornwall.

But what is becoming an increasing problem is the creation of invalid wills, or ones that are completely inappropriate.

Both can create problems for loved ones - and prove very costly.

A case in point emerged a couple of years ago when a divorcee signed a will, drafted by his step-daughter, which dis-inherited the children of his first marriage in favour of his second wife. Following the man's death, his will was hotly disputed with the case pursued all the way to the Court of Appeal. It cost the man's estate and his extended family huge legal fees, not to mention enormous emotional heartache in pursuing the claim in the first place.

Law relating to the validity of wills is complex, with much enshrined in 19th century case law. As a result it's vital wills are completed in accordance with very specific rules. If they fail on any one of the guidelines, the will is deemed invalid and assets are left intestate, leaving the potential for an expensive, long-running and damaging family dispute.

Wills must be signed in the presence of two independent witnesses. It may sound simple, but it's easy to get this straightforward formality wrong and often the first time a problem becomes apparent is when it's time to administer the estate.

There's also an increasing number of cases of well-meaning people making wills, but because they have become so out of date, they are hopelessly inappropriate for current circumstances. It leaves disappointed beneficiaries driven to the heart-breaking decision to launch proceedings against the estate in a bid to try right what they see as an injustice. In the past, clients would have been warned against making these sorts of claims given the costs involved. But with rising house prices and general increased wealth, it's now far more worthwhile to pursue them. Often if a second family is involved it is now the principle that is deemed more important, rather than any actual wealth.

Add to this the recent proliferation of sellers going into the DIY will-writing market, which may present competitive options for customers, but often with increased risks because of the lack of recourse and insurance if things go wrong. Solicitors are insured and carefully regulated to ensure they make good any loss to an estate from an incorrectly or negligently drafted will.

Bad drafting has now become such a major problem that the Law Society was forced to launch a high-profile consumer awareness campaign to highlight the risks of DIY wills. It may sound simple, but the biggest mistakes include incorrect execution and vague language often drafted by the will-writers. For example, the word "money" has no real legal meaning and simply saying: "I leave all my money to so and so", is likely to invalidate the will and the precious gift carefully earmarked for a loved one will fail.

If you require any further information on this or any other aspect of personal injury, please contact Katherine Neal of the Trusts & Probate Team on katherine.neal@harveyingram.com or 0116 257 4459.

Click here to visit our Trusts and Probate website.