How a Homemade Will can Cost You Dearly
John Cato emphasises how synchronised English and Portuguese Wills are crucial, using a cross-border legal snarl caused by a homemade Will to demonstrate what can go wrong. He answers the question: ‘Are homemade Wills legally binding?’
The Context
Our largest job to date in the Algarve revolved around the ‘homemade’ Will of Mrs X, who lived in a Villa in Monte Gordo. She owned a large number of assets in Portugal and England and had property between her Villa and Faro and a substantial piece of coastal land between Tavira and Santa Luzia.
We learned that she had contacted an English lawyer who had correctly advised her to create a Will in England and then synchronise it with a Portuguese Will. This lawyer quoted her £1,300 on top of a roughly €500 quote in Portugal to compose these documents. Mrs X believed these prices were simply lawyers making money and had spent significant sums on lawyers before without seeing any benefit.
Being English, she knew of ‘testamentary freedom’, which allows you to leave your property as you please. Under the ‘Inheritance Act 1975’ in England, the law may intervene after your passing in certain limited circumstances; for instance, a spouse who has received nothing may petition for provision from the estate. With her general perception of the ‘testamentary freedom’ jurisdiction, Mrs X composed a Will regarding her Portuguese and English assets on the kitchen table, thereby placing herself in the worst possible legal environment in both countries.
The Problem and The Solution
Our expertise with contested Wills, known in the trade as ‘Solemn Form Business’, meant that we were instructed. We then instructed Dina Sousa from Sociedade de Advogados in Faro.
Here is a simple breakdown of how we sorted it out:
The Will did not meet the conditions set out by Section 9 of the Wills Act 1837. Additionally, it had a misdescribed charity trust that was not recognised under Portuguese law.
We had to apply to a High Court Judge in England and find all of Mrs X’s potential beneficiaries. These relations were also served with the application. As the old saying goes: ‘where there’s a Will, there’s a relative’, and after the estate’s value and the ‘dodgy’ Will became common knowledge, some duly appeared.
Due to the cost of further legal fees, it was cheaper to buy some of them off. Mrs X benefited some nieces and nephews, who had never cared for nor kept in touch with her; she had never even met one of them.
Despite this setback, the judge made the order sought, so we had an ‘amended Will’ that was valid in England.
Fortunately, Portuguese law can recognise a Will created in a different jurisdiction. We could begin managing the Portuguese estate once we obtained the High Court order and a Grant of Probate. The goodwill of the Portuguese justice system assisted our cause by allowing us to interpret an English charitable trust as a limited Portuguese company.
During the process, we had to deal with:
- The ‘relatives’
- a Portuguese Municipal Authority determining some of her lands would be ideal for a seaside car park but backed down when ‘introduced’ to European Human Rights Law regarding property
- Local travelling people occupying some land (when I inspected this occupation, I was told to stay at least 500 yards away as they had firearms and weren’t too fond of visitors)
- Theft from her Villa and damage caused by squatters
- Plenty of convoluted English and Portuguese law
The estate could have avoided these delays and expenses if Mrs X had made one Will in England and another in Portugal, carefully defining her assets, and ensuring the separate Wills were synchronous. Our firm drafts English Wills and provides English tax advice. We have a dedicated specialist solicitor who is a member of the Society of Trust and Estate Practitioners in England – the recognised expert body for inheritance advisors.
Maintaining a close association with our Portuguese partner law firm enables us to advise through both jurisdictions on international cases. We specialise in disputes so we can resolve problems surrounding cross-border inheritances.
No Matter Where You Reside – Make a Will
The cross-border jurisdiction made this particular case complicated. It demonstrates how everyone should make a will, no matter which country they reside in. As Dispute Resolution Solicitors, we see first-hand the emotional impact and financial loss incurred by a disputed Will.
Issues with Homemade Wills
Homemade Wills present multiple challenges for both families and their legal representatives. They are rarely legally binding as they miss critical details required by English Law. Here are three typical Will problems that arise.
Signing and Witnessing
Under the Wills Act 1837, the person making the Will must sign it with the intention of creating a Will. Their signature must be in the presence of two witnesses, who must also sign.
If your Will is not signed and witnessed, it is not legally valid and cannot be executed after your death.
Expression of Intention
Knowing whether a piece of paper was intended as a Will can be debated in Court. A handwritten, homemade Will can only be considered a Will if it includes a deliberate expression of intent.
Ambiguity
Without legal assistance, your Will risks ambiguity, making it extremely difficult to execute and leading to Contentious Probate after you are gone.
Imagine you want to leave your home to your child and state:
‘In the event of my death, I leave my home, 1 Example Avenue, to my child.’
If you sell 1 Example Avenue, move to 2 Demonstration Street and then suddenly pass, will your child inherit your new property? After all, you no longer own 1 Example Avenue and no other properties appear in the statement. Though you may have intended to leave your house to your child, your Will does not explicitly state it. Therefore, your original intention could be misunderstood. Writing a Will with a solicitor's support avoids this ambiguity, so your wishes are clear and can be easily executed.
What Happens When a Will is Invalid?
Invalid and ambiguous Wills are costly issues for your beneficiaries. Contentious Probate is a complex problem requiring lengthy legal work to resolve, which comes at a much higher cost than instructing a solicitor to help you write your Will in the first place.
If your Will is entirely invalid, your estate is divided according to a previous Will or, if no other Will exists, the laws of intestacy. Your property goes to your relatives in order of priority, starting with your spouse and then your children. Any minor relations will likely receive nothing.
For more information on Wills, Trusts and Probate, contact our solicitors. We can schedule a free appointment to learn about your case and support you.
Featured Image: Unsplash Licence - Mayron Oliveira
