Homemade Will Changes Invalid Due to Witnessing Errors, Legal Experts Say

A family is facing a potential inheritance dispute after homemade changes to their parents' wills were found to be invalid due to insufficient witnessing. The codicils, intended to alter the distribution of assets, were signed by both parents in sound mind but only had one independent witness, falling short of the legal requirement for two.

The Original Will and Proposed Changes

The parents originally made mutual wills in 2006, naming each other as executor. The plan was for the surviving parent's estate to be split, with a grandson receiving 50%, the writer of the note 25%, and two others (a step-granddaughter A and a niece) each receiving 12.5%. A second step-granddaughter (B), who was estranged at the time, was excluded.

Later, the parents wished to include step-granddaughter B in the inheritance. They drafted a homemade codicil to redistribute the 25% share originally designated for step-granddaughter A and the niece. This would have allocated 8.33% to each of them, including step-granddaughter B.

Legal Formalities and Invalidity

Despite the parents being of sound mind, the codicils were witnessed by only one person. According to legal experts, codicils are subject to the same signing requirements as wills. This generally means the testator must sign in the presence of two independent witnesses, who then also sign in the testator's presence. The failure to meet this requirement has rendered the codicils invalid.

Consequently, the original will terms will likely stand. The father died in 2021, and the mother, now in a care home with Alzheimer's, cannot change her will due to her lack of capacity and the binding nature of mutual wills made after the first death.

Addressing the Discrepancy

Sarah Nettleship, a partner specializing in estate tax and succession, noted that mutual wills can be rigid and cause unforeseen problems. However, in this specific case, the primary issue is the invalidity of the codicils due to improper witnessing.

If the family wishes to honor the parents' intentions, there are potential avenues after the mother's death. The beneficiaries named in the original will could voluntarily agree to vary their inheritance to include step-granddaughter B. Alternatively, any beneficiary could choose to gift a portion of their inheritance to step-granddaughter B. Such a gift, if made via a deed of variation within two years of the mother's death, can be tax-efficient without requiring the donor to survive an additional seven years.

Cautionary Tale on DIY Wills

This situation serves as a cautionary tale about the risks associated with homemade wills and codicils. Legal professionals strongly advise seeking specialist advice to ensure all legal formalities are met, preventing simple oversights from invalidating important estate planning documents. The rigidity of mutual wills is also highlighted as a potential pitfall, with alternatives like life interest trusts often recommended for greater flexibility.