DIY Will Changes Invalidated by Legal Technicality, Leading to Potential Family Disputes

A family faces potential discord over inheritance after homemade changes to their parents' wills were deemed invalid by legal experts. The issue arose when parents, initially having made mutual wills in 2006, attempted to alter their distribution plans through a handwritten codicil to include an estranged step-granddaughter.

Under the original wills, upon the second parent's death, assets were to be split between their grandson (50%), the person writing in with queries (25%), and two others sharing the remaining 25%. A step-granddaughter (B) was initially excluded due to estrangement. However, after she reconnected with the family, the parents created a codicil to redistribute the 25% share originally allocated to step-granddaughter (A) and a niece. This would have given step-granddaughter (B) a 8.33% share, with the other two receiving 8.33% each.

The codicils were signed and dated by both parents, who were of sound mind at the time. One independent witness also signed. Following the father's death in 2021 and the mother's subsequent move to a care home due to Alzheimer's, the family encountered a legal hurdle. The sale of the family home proceeded, with the writer receiving their 50% share as per the original will. However, legal advice indicated the codicil was invalid.

Sarah Nettleship, a partner specializing in estate tax and succession, explained that codicils are subject to the same strict signing requirements as wills. This typically necessitates the testator signing in the presence of two independent witnesses, who must also sign in the testator's presence. As the codicils were only witnessed by one person, they are invalid, meaning the original wills remain legally binding.

Nettleship also cautioned against the use of mutual wills, describing them as rigid and potentially problematic. Mutual wills essentially form a contractual agreement that prevents the surviving testator from changing their will after the first death. This rigidity can create unforeseen issues, as the survivor may be unable to adapt to changing circumstances or re-evaluate beneficiaries' needs. While the parents were free to change their wills as long as they both agreed, the invalid codicil means the mother's estate will pass according to the original 2006 will, especially as she now lacks the capacity to make further changes.

If the family wishes to honour the parents' original intent to include step-granddaughter (B), several options exist post-mother's death. Beneficiaries can voluntarily agree to vary their inheritance to reflect the codicil's terms, although they are not obligated to do so. Alternatively, the writer of the query, or any other beneficiary, could gift a portion of their inheritance to step-granddaughter (B) using a deed of variation within two years of the mother's death. This can offer tax efficiency without requiring the donor to survive the gift by seven years.

Nettleship suggested that couples wishing to ensure specific beneficiaries receive assets after the second death might consider using a life interest trust instead of mutual wills. This allows the surviving spouse to benefit from the assets during their lifetime while preserving them for the intended beneficiaries after the second death, offering more flexibility than mutual wills.

The situation serves as a cautionary tale regarding the risks of homemade wills and codicils, highlighting the importance of seeking specialist legal advice to ensure that important legal documents meet all necessary formalities and accurately reflect the testators' wishes.