In the first of a two-part series, we discussed making a claim under the Inheritance (Provision for Family and Dependants) Act 1975. In this second part, we will discuss the other way in which a person can make a claim against a deceased’s estate which is the issue of validity.
For a Will to be valid, the testator must:
- Be aged 18 or over;
- Have sufficient mental capacity;
- Have the necessary intention to create a Will;
- Be free from undue influence or duress; and
- The proper legal formalities must be met.
We will now discuss the ways in which a Will can be deemed invalid.
Not following the proper Legal Formalities
The legal formalities are outlined in section 9 of the Wills Act 1837 and these requirements are:
- It must be in writing and signed by the testator or by some other person in his presence and by his direction;
- It appears that the testator intended by his signature to give effect to the Will;
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time;
- Each witness either attests and signs the will; or acknowledges his signature, in the presence of the testator.
Section 9 does not state that any form of attestation is actually necessary. An attestation should be included however, because with the absence of an attestation clause, the registrar must establish due execution of the Will by affidavit evidence. There is also a presumption of due execution if an attestation is included.
Lack of Intention
This is pretty self-explanatory; the testator must have the necessary intention to make the Will. As discussed above, one of the requirements for a Will to be valid is that the testator must know and approve the contents and also know and approve the instructions given. The use of an attestation clause can demonstrate this as the testator is signing the Will to say that it is their last Will and they revoke all previous Wills, so it implies that the testator knew and approved of the contents and intended for this to be their last Will.
If the testator cannot read the Will and approve of the contents, for example if they are legally blind or English is not their first language and the Will has been translated for them, then the attestation clause must account for this. The clause must explain how the testator is aware of the contents, so for example “the Will has been read over to the testator and he appeared to thoroughly understand and approve of the contents of this Will”. Similarly, if the testator is physically unable to sign, the attestation clause must reflect this and say the Will has been signed by person A at the direction of the testator.
If no explanation is given in the attestation clause or there are any other issues regarding the execution of a Will, then the Probate Registrar will likely query the Will when it goes to Probate and will likely call for an affidavit of due execution from the witnesses. This can cause issues if the witnesses are no longer alive or cannot be contacted.
Altered or Forged?
Sadly, it is the case that sometimes a Will has been altered or forged in some way or has been created fraudulently. For example, the signature on the Will might be different from that of the person who was supposed to have made it.
Avoiding the use of staples when binding the Will is also advisable as this can be tampered with, and pages can be removed and replaced easily. There is no official guidance on this, however the use of an eyelet or rivet through a legal corner, stitching together or heat binding rather than use of staples is more sensible.
A client must have full testamentary capacity in order to execute a valid Will. If a Will writer or instruction taker has any reasonable doubt as to a client’s capacity to give instructions then it is their professional duty to satisfy that the client has, or does not have, the required testamentary capacity. When assessing a client’s capacity, there is a common law test as well as a statutory test.
The test in Banks v Goodfellow requires the testator to understand 3 things:
- The nature of his act and its effects, (but not necessarily their precise legal effect – broad effect of will);
- The extent of the property of which he is disposing; and
- The nature of the claims to which he ought to consider i.e. due to non-provision of family members.
Furthermore, the testator should not be suffering from any disorder of the mind that “shall poison his affections” or any other delusions that may influence the provisions of his Will. A ‘delusion’ is a belief in something that no rational person could hold, and that a person maintains despite contradiction by rational argument. A delusion will affect a testator’s testamentary capacity if it influences or is capable of influencing the provisions of their Will. If a testator holds a delusion that cannot affect the provisions of their Will, then they may still have testamentary capacity. In Banks, the testator was convinced a man who was dead was stalking him and harassing him. As this did not affect his Will, it did not affect his testamentary capacity.
Sometimes people can be pressurised or coerced into making a Will on terms which they are not happy with which is known as “undue influence”. This pressure or influence must strong enough to overbear the testator’s free will.
When taking instructions from a client, the instruction taker should be asking to see their previous Will, if they have one. One reason for this is that it can show if any major changes have happened since the last Will was signed. For example, if there is a Will signed in 2022 leaving someone’s estate shared equally between their 3 children and then in 2023 they come in with one of their children and they are changing the Will to only benefit said child and excluding the other two children, this should set alarm bells ringing with the instruction taker. There could be a legitimate explanation for this, however it is best that the instruction taker asks further questions to determine if there is any undue influence occurring. It is advisable that an instruction taker should see the testator on their own at least once as they might be more open and honest about their wishes.
This is one of the most common claims against an estate, however, is the least successful.
If you are interested in speaking to someone regarding your estate planning, please visit our Find a Member page to search for a SWW Member nearby or call the office on 01522 687 888 and a member of the team will be more than happy to help.