Errors with homemade wills
13 August 2021
You might often have had to help clients sign wills at home by giving them direction and letting them have samples. Particularly during Covid, when it was difficult to see clients face to face. However despite the best instructions in the world, invariably there will always be a mistake or some issue with home wills. Two recent examples. I made a will in the UK for a lady in a nursing home. She was Irish and living in England most of her life. We had pre-arranged a capacity certificate from her doctor. Two witnesses were lined up. I had previously drafted the wills. I oversaw the will execution via Whatsapp. Everything was checked and double checked. However, when the wills came back I notice that there were light pencil marks on the will where someone had put in ‘x’s on the wills to show the witnesses where to sign. These were not visible to me on the call. We had to do an affidavit of plight and condition to deal with these issues.
Similarly I had sent wills to the UK and sent sample signature sheets to my clients. When the wills were returned, they appeared good, but the witnesses had printed their names rather than signing and printing as I had demonstrated in my sample. In all other respects the wills appeared normal. S. 78(2) of the Succession Act states that “each witness shall attest by his signature the signature of the testator…..”. Now, I doubt that the validity of the will would be questioned by this error, but I think at least that an affidavit of due execution would be required.
These two minor examples show how DIY wills are fraught with difficulty. I know that I am preaching to the converted here and there is a bit of the “echo chamber” about it, but, of course we should discourage clients from ever doing wills themselves. The real core of difficulty in this area is that will drafting appears simple. That veneer of simplicity will lull many the lay will drafter into making costly errors with painful ramifications.
If you have come across something similar I’d love to know.