Bermuda: Making Your Own Will Could Lead To An ‘Own Goal’

Last Updated: 19 February 2015
Article by Michael Mello

Persons who make their own Wills are known amongst litigation lawyers as a "lawyers' delight".

That is because they frequently make mistakes that end up before the courts either to have the Will rectified by a judge or results in vitriolic litigation amongst family members who disagree over its terms.

In either case, we can say that making your own Will can often result in an "own goal".

I have gathered some examples of actual cases that illustrate the point that a do-it-yourself approach to making a Will is akin to courting disaster.

A very senior and educated civil servant (CS) made his own Will. CS got the legalities correct, but did not think through the consequences of his Will. CS named his daughter by his first marriage his sole executrix and named his daughter and his second wife as his beneficiaries "...to share his estate in such manner as they shall mutually agree".

Of course, the daughter/step-daughter and the second wife/step-mother could not agree on anything let alone on how much each should receive from the estate. Because the Will was carelessly drafted, this case ended up being litigated in court where the judge gave the second wife a life interest in the estate's real and personal property and the daughter the remainder (i.e. she has to wait for her step-mother to die before she receives anything).

However, this litigation took many months to conclude and the litigation lawyers smiled all the way to their banks.

In our second example, a senior lady (Lady) asked her son-in-law to write out her Will to save money and she signed it without the requisite attestation clause, as the son-in-law was not a qualified Will writer. On Lady's death, the son-in-law and his wife (who were the main beneficiaries) tried to argue that the Will was a Holograph Will (where a Will that is ALL in the handwriting of the Will maker can be proved without the usual attestation clause).

However, because the son-in-law wrote out the Will in his hand and Lady only signed it, the Will was refused probate by the court and Lady was declared intestate. Lady's estate then passed under the succession laws, which were contrary to her stated wishes.

A third case involved a mother (Mother) who had a Will made by a friend (who actually got the technicalities correct), but Mother took the Will home and had her son-in-law and a friend witness the Will.

Unbeknownst to Mother and her family, by having her son-in-law witness her Will the gift to her daughter failed. That is because it is a cardinal rule of law that witnesses are disqualified from benefiting under a Will, which includes the spouse of a witness. The Will was held to be valid and was admitted to probate by the court, but Mother's daughter received nothing from Mother's estate.

I have seen a number of persons use Will Forms, which they fill in following the instructions that come with the Form. I have never seen a Bermuda Will Form as they are usually bought in the United States or United Kingdom – and, because our laws are different, the Form is not normally compliant with Bermuda law.

In my experience, in half the cases, the instructions are not followed correctly or misunderstood -- and such Wills frequently end up with the courts having to be rectified, again with the litigation lawyers smiling all the way to their banks.

While the four examples I have given have differing fact scenarios, what they have in common is that what should have been straightforward matters became complicated – and expensive – because the makers of Wills took matters into their own hands.

Where such important matters are at stake, it is instead wise to consult with a lawyer who is expert in the area and financially responsible for any mistakes made.

Article first published in The Royal Gazette, February 2015

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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