Online Wills: do they protect your loved ones?

Earlier this week, a major player in the Will Writing software industry advised law firms to “recognise impact of online wills”, noting that “the market for wills is changing” and that younger people were attracted to online solutions. But do they offer the same level of protection for our loved ones as a solicitor-drafted Will?

Numerous websites now offer online and distance Will writing solutions. Some are very well presented, featuring attractive multi-step forms or ‘wizards’ which walk you through providing the information required to make your Will. The process feels simple, and those that offer an “expert” check at the end feel reassuring. The pricing is competitive too, in contrast with a trip to your local law firm. It’s not hard to see why online Will services are gaining popularity. Could the high-street solicitor be redundant?

Whilst online Wills look and feel like the future to those who have never made a Will, the more astute will quickly see the potential pitfalls. Firstly with an online service, there’s nobody checking to see if you even have the capacity to make a Will. Capacity is decided with reference to the very old case of Banks v Goodfellow, which requires that a testator:

  • understands the nature of the act and its effects;
  • understands the extent of the property of which they are disposing;
  • comprehends and appreciates the claims to which they ought to give effect; and
  • does not have a disorder of the mind which “poison[s] his affections, pervert[s] his sense of right, or prevent[s] the exercise of his natural faculties”.

If you were to visit any solicitors’ firm and make a Will, your solicitor would record detailed evidence to support the above. If later someone were to challenge your Will on the basis that you didn’t meet the test for capacity, the solicitor’s evidence would be very persuasive. However, if you make an online Will using a wizard, there is absolutely no such evidence of the above. Neither will there be evidence that you understood and approved of the Will’s contents, and any claims that you were unduly influenced in your testamentary decision making would be far simpler to bring.

In short, an online Will should be far easier to contest than a Will made with a solicitor. The Courts have even confirmed that using an experienced lawyer creates certain presumption and that a court should not “upset” such Wills made with an experienced Will writer.

Further, we found that the Wills offered by online services were Mirror Wills, leaving everything to your spouse or civil partner and then the children. Such Wills are fraught with problems. After the first death, practically the entire estate is exposed to care fees, creditors or the possibility of all your assets passing outside of the family through remarriage. More complex family structures are particularly at risk, since the wizards were not sophisticated enough to deal with step children who can easily be disinherited.

It was very apparent that the wizards we tried were woefully inept when it came to flexibility – all assets had to be divided the same, besides personal gifts. Business shares were pooled in with everything else, and digital assets didn’t even get a mention. There was no possibility of using trusts to protect assets or to save inheritance tax, either.

There was also no check to see if a potential beneficiary had been excluded. Yet one of the biggest Wills software creators noted themselves that 10.7% of testators specifically excluded people from their Wills. Such Wills are open to challenge, but a number of measures can be taken to minimise this risk. Unfortunately, the wizards weren’t equipped to deal with such matters.

Another glaringly obvious defect was the sheer lack of advice. The wizards simply ask the questions – ‘would you like it this way, or that way’, without explaining why you might want to choose one option or the other. For example, one wizard gave the option of selecting ‘I do not want to deal with guardianship in my Will’ without explaining the implications of this. There was no mention of Inheritance Tax issues either – a particular concern with the introduction of the Residence Nil Rate Band in 2017, and with the fact that a business could be included.

Finally, the ‘legal check’ at the end, whilst adding a feeling of reassurance, really could not add a lot of value. The online questionnaires aren’t a substitute for the full fact-find that a solicitor carries out when meeting with their clients. How does the expert know that one of the testator’s children has been left out of the Will, let alone whether the omission was deliberate? How would they spot that the testator gifting all their “shares” does not in fact own any shares but some other type of investment, causing the gift to fail? In the absence of taking a full family tree and background or discussing the client’s circumstances and goals, how can a so-called “expert” (who on a side note, may or may not be legally qualified) ‘check’ the document is suitable for the testator’s needs? It simply isn’t possible.

In short, the online Will writing services we have seen are simply too basic. Those using them will enjoy the simplicity, speed and lower cost, blissfully unaware of the implications of clicking this button or that. The resulting document is certainly a Will, but it won’t necessarily be the best Will for that person’s circumstances. Further, the lack of solicitor’s notes make such Wills more open to challenge. With contested Wills claims on the increase, it is well worth spending a few extra pounds to ensure your testamentary wishes are respected.

An experienced Will writer works with you to create a Will that is suitable for your specific goals, needs and circumstances. From preserving your children’s inheritance to saving Inheritance Tax; from leaving a business interest to handling digital assets –  making a Will is an important step in caring for your loved ones that in our view, requires a lot more thought and care than spending a few minutes with a simple automated wizard.

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