Can Informal or DIY Wills still hold up? What do the reforms mean for validity and challenges?

What are ‘Informal Wills’?

When considering writing a Will, many people choose to seek professional advice to ensure that their wishes are correctly worded and to try to avoid legal challenges after their passing. However, according to the most recent National Wills Report in 2024, 23% of those writing Wills utilised DIY kits, online services or other non-professional methods.

An informal Will is one, usually ‘homemade’, that does not comply with the requirements for a valid Will. It is possible to find amongst other personal papers, something that is intended to be a person’s final Will – for example, a person’s wishes written on the back of food packaging. As we move into a technological age, with text messaging and email becoming an increasingly common source of communication and contemporaneous record of people’s thoughts, the question is raised whether we will see more purported Wills being made in a similar fashion.

The legal requirements for a valid Will

There are three rules that must be satisfied for a Will to be considered valid in accordance with the Wills Act 1837 namely:

1. The Will must be in writing;
2. The Will must be signed (or the signature acknowledged) by the Will maker (testator/testatrix) in the presence of witnesses; and
3. The Will must be signed (or the signature acknowledged) by two witnesses.

Informal Wills and the Will Act Reform

The Law Commission has recently published its recommendations to modernise the 1837 legislation, to support testamentary freedom and increase clarity and certainty in the law. But what does this mean in relation to informal Wills?

As the legislation currently stands, if a Will does not comply with the formalities listed above is not valid. These requirements can mean that despite clear intentions, the deceased’s wishes are not followed. The Law Commission recommends “a dispensing power” that allows the Court to waive with formality requirements in situations where the person’s testamentary intentions are clear. The Law Commission argues that such a mechanism would allow for greater testamentary freedom, giving effect to the testator/testatrix’s wishes as much as possible. This would be particularly significant where Wills are homemade.

Considering modern records and technology

Within their recommendations, the Law Commission have suggested that the court will be able to look at the ‘bigger picture’, taking into account any record made by the testator which expresses their testamentary expression such as electronic documents, video and sound recordings. There will be caveats in place to this, to ensure that these intentions remained unchanged at the time of the person’s death.

Exceptional circumstances and testamentary freedom

Whilst it is presumed this power will be used in exceptional circumstances, it does open up the possibility of greater testamentary freedom when someone cannot comply with formality requirements for a valid, reasonable explanation. In such scenarios people may have more immediate access to a tablet or smartphone and be able to use this more easily to record their wishes. With the proposed changes, an informal Will produced in such a manner may not necessarily face the rigidity of the current rules. This coupled with the introduction of electronic Wills will make the Will making process more flexible and assessable.  The strength of an informal Will, if the proposals are included within the legislation, remains to be seen.

This is not about weakening the importance of formal Wills. The Law Commission’s proposals are clear; formal compliance remains the gold standard. The dispensing power is a safety net, not a shortcut.

Safeguards would include a high evidential threshold, likely equivalent to “clear and convincing evidence,” and judicial discretion to exclude documents where there is doubt about authenticity or finality.

Striking the right balance

The new legislation will need to strike a balance between the uncertainty of this new area of law, particularly as the scope and application of the power is developed by the courts in the case law, with the benefit of the possibility of giving effect to a testator/testatrix’s wishes not set out in a formal Will.

How can our experts help?

Navigating the complexities of Wills and the evolving legal landscape can feel overwhelming, especially when considering informal or DIY approaches. Our team of experienced professionals can provide clear guidance on whether your Will meets the necessary legal requirements, advise on the implications of the proposed reforms, and help safeguard your wishes against future challenges. Whether you are drafting a new Will, reviewing an existing one, or exploring the use of electronic or informal formats, our experts are here to ensure your intentions are protected and legally enforceable.

Get in touch with our Disputed Wills, Inheritance & Trusts team today on 01202 525333.