Beyond the will: why 'later' often never comes

00:00:05 David Lee, Podcast host

Hello and welcome to Podcast by Brodies. I'm your host David Lee and in this episode, we look at the risks of leaving wills to chance or cutting corners with DIY solutions. A survey by Brodies and YouGov in 2025 highlighted a striking tension. Most people know they should write a will, yet the majority said they would do it later. At the same time, DIY will writing is rising, with many unaware of the pitfalls.

And to talk about the consequences of delay and the DIY dangers, I'm joined by two Brodies’ experts. Richard Pike is a partner in the dispute resolution team, and Angela McCulloch is a partner in the personal and family team.

Welcome to you both. Angela, I'm going to start with you. Pretty much everybody's looking for easy online solutions to everything in life nowadays. So, can you explain first of all what a DIY will is and why it might seem appealing at first glance?

00:01:08 Angela McCulloch, Partner

Essentially, DIY will is any will that's going to be prepared without professional legal advice that can either be through an online template, it can be through a will writing kit, or it can just be someone sitting at home writing their will or their wishes down on a piece of paper.

00:01:28 David Lee, Podcast host

And why might that seem appealing, Angela? Why might people think, oh, this is a good idea?

00:01:34 Angela McCulloch, Partner

It really comes down to two main issues that we see. One is convenience; they're able to do it at whatever time suits them. And the other one is cost; DIY wills typically have a very low upfront cost.

00:01:50 David Lee, Podcast host

And we'll come to some of the DIY disasters later, Angela, but what are the, can you summarise the basic pitfalls of going down this route?

00:01:59 Angela McCulloch, Partner

I mean, I think first of all, when you're looking at wills, the rules that govern Scotland are very different from the rules that govern England and Wales. So, it's not always immediately apparent on these DIY templates what jurisdiction they're designed for and that can create real problems further down the line. Other things that sort of crop up are how the will is actually signed – that is crucially important. And if it's not done correctly at best you're going to have to have additional applications to the court to cure any defects with that and at worst the will itself won't be valid. And then you'll have the estate being governed by I suppose specific legislation that states who's going to inherit in those circumstances and that's known as intestacy.

That can mean the people, that the person writing the will wanted to benefit don't benefit. The other issue with DIY wills is you're not actually getting any legal advice based on your circumstances. So, opportunities for inheritance tax planning can be missed. And the other aspect that we have in Scotland is we have a form of forced inheritance which is known as legal rights. That applies to spouses and children, and DIY wills don't really give you the guidance you need on how to navigate that.

00:03:30 David Lee, Podcast host

Okay, thanks very much. So quite a lot to go at there.

So, Richard, let's come back to that all too common phrase that the survey by Brodies and YouGov bought out; “I'll do my will later”. Talk us through a little bit the hidden costs of delay and let's start, Angela touched there on intestacy, dying without a will. What are some of the issues that might raise in practice in a bit more detail?

00:03:56 Richard Pike, Partner

Sure, thanks David. Well obviously, if you delay and don't get round to doing your will and you die before you've managed to sort it out. You're going to die intestate and that means basically you have no say in deciding who inherits your estate. Instead, some arbitrary rules are going to apply and those are provided for in legislation. The rules are actually different depending on whether you died domiciled in Scotland or died domiciled in England and Wales. But the real problem is that the rules are totally inflexible and they focus really on family members and spouses or civil partners where you've been through that formal process.

So, there's no opportunity for you to pass on assets to friends or business partners, godchildren or charities that you might support. And your assets may well end up going to family members that you don't particularly like.

The other issue with an intestacy is that the rules can be quite complicated and it may not be immediately obvious who might inherit and in what shares and it depends on the whole circumstances of the situation.

So, to talk you through some examples, if you are formally married or have a civil partnership but you've got no children, then the surviving spouse or civil partner is going to inherit everything. But if you are married but also have some children, then the spouse or civil partner will only get an arbitrary share of your estate, and the children will inherit the rest. There are also rules to do with if one of the children has died before the deceased person, then there are step-in provisions for grandchildren which complicate matters further.

And one aspect of this that I find sort of really unfair in the modern world is that if you're in a cohabiting relationship, but you haven't formalised that through a marriage or a civil partnership, then under the intestacy rules, the starting point is you're not going to inherit anything at all. And that applies both in Scotland and in England. So that kind of common law marriage is really a myth.

There are steps you can take to bring a court claim if you're that cohabiting partner that's lost out to secure some provision. But that's a pretty discretionary remedy both in England and in Scotland. And so, it gives you no certainty really.

00:06:52 David Lee, Podcast host

Okay, thank you.

And you touched there on the impact on families, Richard, a little bit, but it's very rarely going to be a positive, smooth or happy outcome if someone does die intestate. It's going to be messy for family more generally.

00:07:10 Richard Pike, Partner

That's right. And I think another aspect of intestacy that I haven't mentioned yet that I think contributes to this messiness and that often gets overlooked, actually, is that as well as not choosing who to benefit, you don't get to choose who your executor will be and the rules around who will actually deal with all the paperwork in administering the estate. They're governed by the intestacy rules as well. So, you may end up with someone totally inappropriate.

For example, if your estate goes to your children, but your children have only just turned 18, for example, and don't have any sort of financial wherewithal or understand much about how the world works. Then you're going to end up in a pretty tricky situation potentially where things get overlooked or things aren't done properly. And if you've got an estate where it's a complicated estate or there are valuable business assets or business interests that need to be managed straight away when the person's died, then it can cause real problems.

And that in itself can be a source of dispute, you know, that the person who's charged with actually dealing with the administration of the estate hasn't done it properly. You know, for example, they've left it too late before paying the inheritance tax or they've returned the estate to HMRC incorrectly for inheritance tax purposes.

00:08:43 David Lee, Podcast host

OK, thanks very much, Richard. And let's come back, Angela, to those DIY wills. Any examples where DIY wills have caused family disputes?

00:08:56 Angela McCulloch, Partner

And I think that the short answer to that is yes, there's lots of examples.

I think the first one I'd maybe sort of touch on is we've been dealing with a case where the deceased person had wanted to benefit friends and charities. And he'd separated it out, so his house was going to be left to his friends which was going to be the bulk of the estate, and he'd left a provision to deal with the residue and that's really everything that's left after this specific legacies was to go to charity. Unfortunately, though the deceased had been unwell, he'd moved into long-term care, and the house had been sold. So, at the point this will was being relied upon, he didn't have that house anymore and that legacy failed, which meant the charity has received everything in that case.

Again, I think that really does highlight some of the issues with DIY wills because if you have someone who's wanting to leave a house as a specific legacy, there's so many follow-up questions that if you're getting legal advice, you would be asking like, should it be subject to a mortgage if there is one; What if you don't live in that house; Should it be any replacement house if that house is sold, should they get a cash legacy instead?

And that's something that if you're just doing this yourself without any legal knowledge or guidance, you're not going to know these issues that would arise.

We've got another case where a DIY will had been prepared and it was a pro forma template document and the deceased person had completed it correctly to the extent that executors were appointed, provided for payment of debts, detailed funeral instructions. However, he didn't say what he wanted to happen to the residue of his estate. So, notwithstanding he'd gone to the effort of dealing with that and he'd even got it signed correctly, so it was valid. The intestacy rules kicked in nonetheless because there hadn't been provision appropriately made in the will to deal with that.

00:10:59 David Lee, Podcast host

Okay, thanks very much. And Richard, also a couple of other things, outdated templates, one, any problems arising from that and also homemade codicils. And if you just explain a little bit for those who don't know what a codicil is, first of all.

00:11:14 Richard Pike, Partner

Yeah, sure, David. Yeah, I'll take codicils first. So, A codicil is essentially a document that can make amendments to a will. So, it's a sort of supplementary document and most often you'll get that where, for example, someone wants to change the executors, you know, they've either fallen out with the people that they've put in as executors and don't want them in anymore or the executors might have died and there isn't a substitute so they need to appoint new ones.

Where these often go wrong if they're homemade is that codicils to be valid and to validly amend a will, they've still got to meet the same formality requirements as wills and people often overlook that.

So, for example, the witnessing provision, they might miss that. Another big problem you get with these homemade codicils that I've seen is that people get a bit sort of trigger happy with them.

You know, they do one and they think, oh, you know, I've changed my will, and then something will happen six months later. Oh great, I'll just do another codicil to deal with that change and then another one six months later. And what then happens is they die and they've got this quite confusing picture where they've got a will and then numerous other codicils that make changes and those codicils might not all read properly together.

They might contradict each other a little bit if they've been homemade. I've also seen a case where there had been numerous of these homemade codicils, but a couple of them had gone missing and then were only produced later on in the dispute.

So that all of that can conspire to create a lot of problems and sort of grounds for disputes between family members.

So, take extreme caution, really, I think if you're thinking about doing a codicil, go and see a professional, first of all, they may say, look, it's best here just to redo a will. And that might be, you know, only a little bit more expensive, but give you way more certainty.

Going on to template wills, I mean, I think these particularly dangerous. First of all, because it's a completely unregulated side of the industry. So, if you go and see a solicitor, to do a will, they're regulated by their professional regulator, they owe various professional duties and you're going to get a level of service that you can hold the solicitor accountable to, which means that they've got to do a proper job.

A template, you don't know who's written that, it might have been written by a solicitor, but equally it could have been written by someone who doesn't really know enough about will making and estate planning.

Secondly, I think it's very easy to choose a template that's either out of date or just completely inappropriate for the circumstances. So, one example here, which we've seen a lot of is in 2007, there were some quite big changes to the way inheritance tax worked in the UK. And prior to that, a lot of people would draft wills that basically left the tax-free amount on a discretionary trust so that it would preserve their mill rate band for future generations.

After 2007, a change was brought in which meant that married couples could transfer their mill rate band between each other. So, you didn't really need that trust provision any longer.

So, what then happened was we saw a lot of people using templates that had been created before this change in 2007 and inadvertently setting up these discretionary trusts in their wills when they just didn't need them because their estate didn't warrant it and it wasn't a complicated enough situation.

So, as I say, tread with extreme caution when it comes to template wills and they can create havoc in the right circumstances.

00:15:38 David Lee, Podcast host

Or the wrong circumstances.

00:15:40 Richard Pike, Partner

Or the wrong circumstances, yeah. Depending on whether you're a disputes lawyer or not.

00:15:46 David Lee, Podcast host

And just staying with you for now, Richard, and this is a bit of a follow-up from what you said about codicils, about being careful about the wording.

Lawyers are obviously very keen on making sure that the wording in any form of document, including a will, is correct. The general public, perhaps less so, especially in an era where we've got, we're all very patient and we want to get things done as quickly as possible.

Can you just give us a couple of examples of how small mistakes in wills can have really big consequences?

00:16:17 Richard Pike, Partner

Yeah, absolutely. I mean, there's actually a really sort of famous example of this and you talked about lawyers being careful, David. But sadly, this was a case where the lawyers weren't careful enough. And it was a case called Marley and Rawlings which went all the way up to the Supreme Court from it started in the courts of England and Wales and basically a married couple had prepared mirror wills. So, they left everything to each other and then left their estate onto a family friend called Mr Marley who had basically been treated like a sort of son by the couple.

Now, unfortunately, they accidentally signed each other's will. So, Mr Rawlings had signed Mrs Rawlings' will, Mrs Rawlings had signed Mr Rawlings' will.

And that meant that their biological children basically tried to argue that it rendered the wills sort of technically invalid, meaning that their estate should pass on an intestacy and not according to the will.

So, this just created a huge, huge dispute that went, as I say, all the way up to the Supreme Court, where it was eventually found that those wills stood up and were valid wills, but a huge cost in terms of legal fees.

And I think actually one of the outcomes of that was that the insurers of the firm solicitors that were involved had to pick up some of the tab for those legal fees.

But it just shows you how a little mistake like that can have really drastic consequences and can create this big family dispute that runs on for years and years at great cost.

Another example to give there, which is particularly relevant for Brodies because we see clients both who've got Scottish interests and English interests, is the different witnessing requirements that Angela mentioned earlier on in the podcast. Now in Scotland, you only need one witness for a will to be valid, whereas in England and Wales you need two.

So again, you can imagine if you select a template that is based on Scottish law, but then someone who's making their will in England uses that and only gets one witness, then that's not going to be a valid will in that scenario unfortunately.

So, paying attention to detail is key and despite what I said about Marley and Rawlings, usually the lawyers will get it right and if they don't, then you can rely on their insurance to help sort out the mess that ensues.

00:19:12 David Lee, Podcast host

Okay, thank you. And Angela, we've touched quite a bit on some pretty messy family matters that have ensued from getting wills wrong or going down the wrong route.

What's your experience of that kind of financial and emotional toll when wills do go wrong?

00:19:30 Angela McCulloch, Partner

I mean I think it's fair to say it's significant on both fronts.

On the financial side of things, it states that with a properly drafted will would have been very straightforward and could have been dealt with pretty quickly, can become much more complicated with additional court applications being needed to set up the validity of the will.

And during that time, you've got the uncertainty pending those applications because you're expecting it to go through as routine, but it is still going to be considered by the court, and they will make a decision on that.

So, you see an increase in costs and also an increase in the time that the family are having to deal with that.

Where you have disputes that are going beyond just rectifying some of the, I suppose, what we'd maybe say are the smaller issues, then the cost can run into tens of thousands of pounds, and the process can take years to resolve.

And that then sort of ties in with what that emotional toll is. And I think the emotional toll is worse than the financial toll because what you find is you've got families who are already grieving and finding themselves in a difficult point in their lives. And then they're furthermore finding themselves in conflict with one another, whether that's siblings who haven't spoken to in years or children who are feeling that they've been disinherited or as Richard had touched on earlier, partners who may have been cohabiting with the person who died for 30, 40 years finding out they don't have any actual entitlement.

I think the survey that you mentioned has shown that 23% of people are concerned about avoiding family disputes. And I think what we've seen from this is that concern is well found that people do fall out over money and over what is regarded as fair or what they think someone might have wanted to happen. So, a properly drafted will doesn't just protect assets, it also protects relationships.

00:21:32 David Lee, Podcast host

We've heard a lot of horror stories, Angela.

So why do so many people still, notwithstanding all the things that have been said about wills and all the challenges that can follow if it's not done well. Why do so many people still leave it until later?

00:21:49 Angela McCulloch, Partner

I think when you're looking at that, it does come back down to that classic intention gap. The survey had found that 35% of people intend to put a plan in place but haven't started. And you've got 69% who agree that family discussions about inheritance are important, compared with only 10% who've actually taken that action.

And I think when you look beyond that, the reasons are very human. Confronting your own mortality can be uncomfortable. People don't like to think about it. They don't want to cause upset within the family. They also assume that they've got plenty of time and it's something that can be put off until tomorrow.

I think the other thing you see is some people just simply don't know where to start. What I've seen is that people can underestimate the complexity of their own affairs or family relationships and assume that the statutory provisions that we have will deal with everything as they want and that's just not the case.

The reality is the cost of professional advice is very modest compared to the cost of getting it wrong and imperfect action I think is always going to be better than inaction. Just getting a basic will in place, appointing executors to deal with things and naming those who you want to benefit is a really good starting point.

00:23:16 David Lee, Podcast host

Okay, thank you. So, we've heard a lot of horror stories today, Richard. Angela started us on the way to the public information film at the end.

What's your simple advice to those who are still procrastinating about making a will for all the sorts of reasons that Angela's just outlined?

00:23:37 Richard Pike, Partner

Yeah, I mean, I would like to encourage people to look at it in a really simple way.

For most people, dying is basically the biggest transaction that they're ever going to enter into. Everything that they own is going to be transferred to others. And just as you wouldn't think about buying a house or selling a business without having some proper legally binding paperwork in place and going to see the right advisers to guide you through those transactions. The same applies to your estate when you die. And really the only way to ensure that you're going to be able to manage it well and, in a tax, efficient way and in a way that ensures you minimise the possibility of disputes is to see some professionals about it.

And you know, back to Angela's point about people finding it difficult and not knowing where to start and

underestimating the complexity of their affairs.

In my experience, going to the right trusted adviser to get some advice about all of this, it can help cut through all of that and actually sort of minimise the burden and lead you to a sort of guided conversation where you can go through the process of making your will, without it becoming too much for you.

00:25:10 David Lee, Podcast host

Okay, and let's pick up on that word finally, Angela, that Richard used there.

Those who see making a will as a burden, what would you say to them?

00:25:18 Angela McCulloch, Partner

I'd probably try and reframe that question so that it's not a burden. It's an act of love. You're taking responsibility for the people that you care about and you're making sure that they're going to be protected.

Without a will, you're leaving your family to navigate a difficult legal process when they're grieving and you're leaving decisions about who gets what to a set of statutory rules. And those rules don't know anything about you or your family, your relationships or your values.

So, a will gives you control and I suppose I've been doing this for a long time now. I think the overarching message I get back from clients when they have started this process and we're having that meeting to sign the will is that was a lot easier than I thought it would be and that's a huge relief. I don't need to think about that now.

00:26:18 David Lee, Podcast host

Great. Thanks very much Angela and thanks to Richard as well for your excellent insights today.

You've been listening to Podcast by Brodies where some of the country's leading lawyers and special guests share their expertise and insights about important legal issues and developments and how they affect businesses, organisations and individuals across the UK and further afield.

And if you'd like to hear more you can subscribe to Podcast by Brodies on all your favourite podcast platforms. For more information and insight, please visit brodies.com. And finally, don't forget to make that will.