The Dangers of DIY Wills
In recent years, as the global financial crisis has caused everyone to tighten their belts, we have seen more and more clients either not making wills at all or turning to DIY wills in order to ‘save’ on legal fees. In reality, however, this is often false economy.
‘Why should I make a will at all as all my money will go to my husband/wife anyway won’t it?’
This is a common question and many people simply are not aware of the importance of making a will. There is a common misconception that all of a person’s assets will automatically pass to their spouse and/or children. However, this is not always the case. In the TRNC, co-owing spouses are deemed to own property as ‘tenants in common’ which means that each spouse’s share is treated separately and individually and on the death of one of the spouses his/her share in the property will not pass automatically to the surviving spouse but will pass according to the terms of the will or, where there is no will, under the rules of intestacy. Under the TRNC rules of intestacy, where a person dies leaving a spouse and children, the spouse will receive only 1/6 of the estate and the rest will pass to the children or grandchildren. Where there are no children or grandchildren, the spouse will receive ½ of the estate and the rest will pass to the deceased’s parents or siblings or nieces and nephews. Where there are no living children, parents, siblings, nieces or nephews, the spouse will inherit ¾ of the estate and the rest will pass to any living relatives up to the 4th degree of kindred e.g. first cousins etc. The fact is that without a will to protect them, spouses get a very raw deal under the TRNC intestacy laws. Unmarried partners get even more of a raw deal as they have no legal entitlement in their partner’s estate whatsoever. Civil Partnerships and gay marriages are not recognised in the TRNC and so gay couples also have no entitlement in the estate of their partner/spouse. Children also do not always benefit as children born to unmarried parents have no entitlement in the estate of their father under the TRNC intestacy rules. In relation to Turkish Cypriots, there are also statutory restrictions on how much of their estate can be left by will and how much has to pass to their legal heirs and so it is always best to seek proper estate planning advice.
‘Ok, so I need to make a will. But why should I spend money making a will with an advocate when I can download a DIY will form on the internet for free?’
Whilst there is, of course, no legal obligation to make a will with an advocate and many DIY wills do turn out to be perfectly valid, the simple fact is that the validity of the will may not be tested until after your death by which time, it is too late to put right any mistakes and these mistakes could result in huge costs to your estate. Most people would never buy or sell property during their lifetime without using an advocate and the same level of caution should be applied to dispositions after your death. In most cases, the transfer of a person’s assets after their death is the biggest financial transaction they will ever make so it is vitally important to get it right.
There are a number of common mistakes which people make when completing DIY wills. These mistakes can lead to the will, or some of the gifts in the will, becoming invalid. For example, under the laws of the TRNC, for a will to be valid, it must be signed by the person making the will and the witnesses on EVERY page. We have seen so many DIY wills fail because the person making the will has only signed the final page. Many people do not realise that if the will is invalid, then the above rules of intestacy will apply to their estate and they will be in the same position as if they
had no will at all.
We have also seen cases where people have attempted to amend their will by making handwritten amendments to the will which can invalidate part or all of the will. In addition, any gifts to any of the witnesses or to the spouse or child of a witness are invalid. Again, we have seen lots of DIY wills where people have asked relatives who are beneficiaries under the will or the spouses of beneficiaries to witness their wills resulting in that beneficiary losing their entitlement under the will.
In some cases, people try to include terms into their DIY will which are not valid or enforceable in the TRNC or use unclear wording so that the terms of the will are uncertain. This can lead to lengthy and costly court battles between the beneficiaries.
Many people are under the impression that will writing is highly lucrative and that advocates encourage their clients to make wills just to earn more in fees. The fact is, however, that contentious probate litigation which results from failed DIY wills is far more lucrative for advocates. While the standard legal fees for making a will are around £150 per will, legal fees for contentious probate cases run into thousands of pounds.
‘I already have a will in England so why pay more in legal fees to have another will completed here?’
Many of our ex-pat clients have made wills in their home country and are under the impression that they do not need to make separate wills to cover their estate in the TRNC. The problem is that even if the wills made in the home country were made with legal advice, the lawyers there would only be familiar with the laws of that country and would not have sufficient knowledge of TRNC law to provide accurate advice. The will may well meet with the requirements of validity in the jurisdiction in which it was made, but may not meet the requirements of validity here. In addition, even if the will is valid, the probate process may become more complicated as a result of the will having been made abroad. Sometimes, where wills are executed outside of the country, the Probate Registrar may stipulate additional conditions in order to prove the will. For example, the Probate Registrar may require the witnesses who attested the will to sign an affidavit. In this case, the witnesses may have to fly to the TRNC for this or attend at the TRNC Representative Office in the country in which they reside. The family of the deceased may not have any information on the whereabouts of the witnesses and if the witnesses are professionals such as solicitors, there may significant additional costs for their time in doing this.
Below are some of the recent cases we have dealt with which highlight the risks of making a will without legal advice or relying on a will made out of the country:
Mustafa had five children – four sons with his ex-wife and one daughter with an unmarried partner. He was estranged from his four sons. However, his daughter visited him regularly and cooked and cleaned for him and looked after him. Mustafa completed a DIY will in the UK leaving all of his estate to his daughter. The will turned out to be invalid because it had not been signed on all pages and so the rules of intestacy were applicable. This meant that Mustafa’s sons were the sole beneficiaries and his daughter had no entitlement as her mother and Mustafa had not been married. Instead of inheriting the whole of her father’s estate as her father had wished, Mustafa’s daughter inherited nothing.
John was divorced with two sons from his marriage and a new unmarried partner. The house in which he and his unmarried partner had lived for many years was registered in his sole name, although his partner had spent a considerable amount of her own money improving the house. John made a will, without legal advice, leaving a life interest in the house to his unmarried partner with the remainder to his sons. John had hoped to ensure that his partner would have somewhere to live for the rest of her life and that his sons would still inherit the property on the death of his partner. However, the reality was very different. The validity of life interests under TRNC law is unclear and had John sought legal advice, this would have been properly explained to him. After John’s death, his sons obtained the Grant of Probate and had the title deeds to the house transferred into their names. They disputed the validity of the life interest given to their father’s partner under the will and attempted to evict her and to sell the property. A lengthy court battle ensued incurring legal costs of several thousand pounds. The matter was eventually resolved when a settlement was agreed under which John’s partner purchased the property from his sons.
Catherine had never married and had no children. Her parents had passed away and although she had six brothers and sisters, she was only in regular contact with one sister. Catherine had made a DIY will leaving all of her property to the one sister with whom she had regular contact. Unfortunately, the will did not meet the requirements of validity under TRNC law and so the rules of intestacy were applicable. As
Catherine had no spouse and no children and no surviving parents, this meant that all of her brothers and sisters were her legal heirs. A considerable amount of time and expense was incurred in trying to track down the other brothers and sisters. More importantly, instead of receiving the whole of the estate as Catherine had wished, the sister with whom Catherine had always been very close received only 1/6th of the
Nadide was Turkish Cypriot by birth, but lived in Australia. Her husband had predeceased her and she had two daughters. She made a will in Australia without seeking any legal advice in the TRNC leaving her house in Australia and ¼ of her TRNC assets to one of her daughters and ¾ of her TRNC assets to the other daughter. Had Nadide taken legal advice in the TRNC, it would have been explained to her that as a Turkish Cypriot by birth, she does not have complete freedom to dispose of her TRNC assets by will and she could have planned the distribution of her estate better. Under the statutory rules, her will only took effect in relation to 1/3 of her TRNC assets. The other 2/3 had to be divided equally between her two daughters meaning
that the daughter who had already inherited the house in Australia, also inherited a much larger share of the assets in the TRNC than her mother had wished.
Bob was a very wealthy US citizen with a TRNC property valued at over £750,000. He left behind a second wife with whom he had no children and three children fromhis first marriage. Bob had made a will in the US without seeking legal advice in the TRNC leaving all of his property to his three children equally. However, the US will did not meet the requirements of validity under TRNC law and so the rules of intestacy were applied to the estate meaning that the second wife was entitled to a 1/6th share in the TRNC estate.
Joseph had a wife and two children. He died in 2011. He had made a will back in 1975 in South Africa leaving all of his property to his wife. The Probate Registrar in the TRNC determined that the will did meet the requirements of validity under TRNC law and could be applied to his TRNC Estate. However, under the terms of the will, a bank in South Africa had been appointed as the Executor. This meant that the Managing Director of the bank would either have to attend the TRNC in person to administer the Estate or sign a formal renunciation at the Turkish Embassy in South Africa. In addition, the Probate Registrar stipulated that at least one of the two witnesses on the will would have to sign an affidavit. The witnesses were bank
employees in 1975 when the will had been made and it would not have been practical to locate them and arrange for them to do this. As the Probate Registrar’s requirements could not be met, the will could not be validated and so the rules of intestacy were applied. This mean that instead of receiving the whole of the TRNC estate as Joseph had wished, Joseph’s wife only received 1/6th of the estate.
This article has been prepared by Advocate Naomi Mehmet of Naomi Mehmet & Partners.