Thinking of doing a DIY Will? Proceed carefully!

Have you ever thought of making your own will? Do I need a solicitor? Surely Google can be of assistance?

Yes, one is entitled to make a will themselves, which in the profession we refer to as a "homemade Will" or a "DIY Will".

If you are thinking of "having a go", I advise you to proceed cautiously! It is much better to make a Will with appropriate legal advice.

I recently had a cup of coffee with an experienced West Limerick solicitor who mentioned that a "homemade Will" has all the hallmarks of a homemade explosive! I agreed with him, and after reading this post, you may very well be of the same mindset!

Take the case of Goodwin .v. Murphy, for example, which was a High Court case decided on the 3rd of July, 2023, by Justice Siobhán Stack.

William John (otherwise Seán) Murphy, late of Naas, County Kildare, died on 14th November 2021, having made his Will on the 4th Day of October 2019.

Seán Murphy was a bachelor who had no children. He worked as a labourer and was keenly interested in history and reading. Before making his Will, he asked his niece, Fiona Murphy, for assistance. She advised him that he should consult a solicitor, but he refused. She downloaded a will template from the Internet and completed it according to Seán Murphy's instructions. He reviewed the document over several days and confirmed his satisfaction with the Will. Fiona Murphy was the primary beneficiary of the will, inheriting his house and surrounding lands. Fiona Murphy arranged for two witnesses to be present during the signing (to comply with the relevant provisions of the Succession Act 1965), which took place without her in Seán Murphy's house. At a later stage, Fiona Murphy suggested to her uncle that he should consult a solicitor to draft a will with professional advice, but he declined again. Seán Murphy died on the 14th of November 2021.

The Will contained ambiguities and inconsistencies primarily due to the use of this template. The Will contained conflicting clauses regarding the distribution of the residue of the estate. Clause 9 of the Will seemingly bequeathed the residue to Fiona Murphy, his niece who drafted the will, yet Clause 10 seemingly left 100% of the residue to Fiona Murphy's daughter, Molly.

Some of Seán Murphy's next of kin challenged the will by instituting High Court proceedings, trying to set the Will aside on the grounds that the terms were uncertain and that Seán Murphy's Estate should then be distributed on intestacy (as if he died without a Will) among his next of kin, including the people bringing the challenge (known as the plaintiffs).

The case came on for hearing before Justice Siobhán Stack on the 3rd of July 2023. Justice Stack held that clause 10, titled "Wipeout Provision", was intended to apply only if Fiona Murphy predeceased the deceased. The court accepted evidence from Fiona Murphy regarding the deceased's instructions for the Will clarifying his intentions. The judgement clarified the distribution of the estate, awarding the residue to Fiona Murphy.

The judgement emphasises the importance of seeking professional legal advice when drafting a will, as templates can lead to confusion and unintended consequences.

In her judgement, Justice Stack stated, "I would therefore stress that the public should ensure that they not only make a will but that they take professional advice in so doing, in order to ensure that their intentions are carried out after their death, and they should also update it from time to time over the years to take account of changes in assets, the identity of family members, and other circumstances."

This case serves as a cautionary tale against relying on DIY legal documents, highlighting the potential for costly and time-consuming litigation due to ambiguous language and conflicting clauses.