A cautionary tale of a DIY will and a lost inheritance

It is not easy to sit someone down and tell them that they are not going to receive the inheritance they expected because of a mistake made in the preparation of a loved one’s will. Yet this is a conversation that we had to have with a daughter after her father amended his will without taking legal advice.

As Dagmara Kulczykowska, head of our Private Client Services team, explains ‘The problem with a DIY will is that it is easy to fall into all sorts of traps that a lawyer could help you to avoid, and which may mean that you possibly end up with a will that does not achieve what you want or, worse still, which may not actually be valid.’

This recent case handled by Dagmara brings the potential problems associated with a DIY will into sharp focus.

Geoffrey Leaver Solicitors was instructed to deal with the administration of the estate of a gentleman who had built up a sizeable and valuable property portfolio.

Much of the work that had gone into developing this portfolio had been undertaken during his first marriage, and for this reason it was his wish that certain properties within the portfolio should pass to his daughter from that marriage, rather than to his second wife. This included one property which had a standalone value of around £500,000.

A DIY update

Some years before his death, the gentleman had a professional will prepared. This was a sensible thing to have done, as any will that was in place prior to his second marriage would have been automatically revoked when he married again, so it was crucial for him to take expert legal advice to ensure that his affairs were in order and that his daughter’s interests remained protected.

In between this will being written and his death, one of the properties earmarked for his daughter was sold and replaced with another property.

Rather than going to a lawyer again to have his will revised to reflect this, he instead tried to update the will himself by simply swapping out the address of the old property and replacing it with the address of the new property.

For reasons which will become clear, this was not a wise or appropriate thing to do.

Effect of the DIY update

The original property listed in the will, which the father had wanted his daughter to have, was owned by him alone and was therefore his to do with as he pleased. However, the replacement property was owned jointly with his second wife. Therefore, under the rules of survivorship that apply in English law, the whole of this property passed automatically to her when he died and could not be included within the part of the estate that was available for distribution to the daughter or any other beneficiary.

The father’s failure to realise this meant that his daughter did not receive the property that she expected, and her anticipated inheritance was reduced by around half a million pounds.

How legal advice could have helped

Had the gentleman sought legal advice on his position when the old property was sold and the new one was acquired, he would have fully appreciated how the new property would be dealt with on his death and could have made adjustments to his will to ensure that his daughter did not miss out on what she was due i.e. by gifting her another property.

He may also have been able to persuade his second wife to change the ownership arrangements in respect of the property in question to ensure that it could be passed on to his daughter as he had wanted i.e. by putting her name on the title deeds of a different property or by making an alternative cash or share provision for her instead.

He could also have explored the possibility of putting the relevant property into a trust, which would have allowed his second wife to enjoy its benefit during her lifetime and then enabled his daughter to take ownership of it following his wife’s death.

As it was, there was nothing the daughter could do to rectify the situation as her father had freely chosen to update the will himself and there were no grounds for challenging the validity of the will. If the second wife had been agreeable, it might have been possible to vary the terms of the will through a deed, but this was not an option in this case.

Avoiding similar problems

If you are contemplating making a new will, or updating an existing will following divorce, death or remarriage – or perhaps even to cater for a blended family – then we would urge you to talk to us about how we can help to ensure that your wishes are carried into effect.

For more information on making or amending a will, please contact Dagmara on 01908 689341 or via email at dkulczykska@geoffreyleaver.com.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

 

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Dagmara Kulczykowska

Dagmara Kulczykowska | Partner

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