WillsNiche Issues and How to Overcome Them

22nd January 2020Manisha Chauhan0
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Normally we share an article with you based on a particular subject of interest or one where we receive quite a few queries in our technical inbox.

This week we thought we would do something a little different and share some scenarios we have provided advice on to members – whether it be advising who has the right to see a Will or what to do where a client has failed to return their signed Will to the will writer.

 

Does a beneficiary have a right to see the Will?

Only an executor has the right to see a Will so they can administer the estate. The beneficiary will only be able to see the Will once it becomes a public document, if they pay for the privilege, or if the executor chooses to allow them to.

If, for some reason, the beneficiary does have a copy of the Will, they are under no legal obligation to provide a copy of the Will to another relative.

 

My clients previous Will has an incorrect spelling of her name, do I need to write a new Will?

Where the name is completely different then we would recommend re-writing the Will with the correct spelling to avoid any confusion or disputes at probate over whether it is her will.

 

My client has recently got married, does her change in name revoke her Will?

No. Unlike marriage, a change in name will not revoke the Will.

It is important to add that a change in name in this situation won’t cause a problem at probate either as the client will still be identifiable as the testator and the executors will be able to provide evidence of her change of name.

 

Since signing, my client has advised me that the wrong date of birth is on his Will, does this invalidate his Will and do I need to re-write it?

A date of birth is not required to make a Will and its inaccuracy does not in any way render the Will invalid.

Alternatively, you have the following options:-

  1. Ask the client to make the amendment to the correct date of birth (as long as it is present and accurate) and initial where the change has been made as well as having it witnessed by 2 witnesses: or
  2. Re-print the Will and ask the client to re-sign it in the presence of the witnesses.

The above process would also apply if the witness wrote their address in the signature panel instead.

If the Will is manually amended by the client and the amendments are not witnessed, depending on the amendment, any change to the Will may not be valid. The Will as originally enacted will still stand as though it hadn’t been altered at all.

 

My client made an error when dating the Will and has used tippex to cover the error, should the Will be re-signed?

In this instance we would advise that the Will is re-signed– even if it just an amendment of the date.

 

We posted the final version of the Wills to our clients and have received a copy of the signed Wills. However, we have seen that the second witness signature does not have details of the witness such as the name and address. Does this invalidate the Will?

Providing the testator and both witnesses have signed the will, it is a legally valid document.

The witness details aren’t required for validity, but very useful in case the witness ever needs to be contacted to give evidence of the will’s validity.

 

I have received an enquiry from a gentleman who is asking if his father made his Will with us, how much information should we provide?

The contents of the instructions taken or the contents of the Will itself are confidential and no other person should be made aware of its contents without the client’s consent. The act of disclosing the contents could go against the clients wishes should the contents of the Will become contentious or be a possible data breach and give rise to further proceedings.

You should not engage in discussions of the contents with any potential beneficiaries; unauthorised disclosure would be a breach of confidentiality. Once the testator dies, there is still a duty of confidentiality which continues and the right of confidentiality instead passes to the personal representatives of the estate. Once probate has been granted, the Will then becomes a public document. Disclosure to other parties should only take place with the personal representatives’ consent.

If this client’s son has requested information from you, you should request that he writes to you with ID for himself to prove who he says he is along with proof that the testator has died (unless you already have proof of this yourself). If he is the executor of that Will, you can confirm details to him. If he is not the executor of the Will, you would need to inform him that you are not able to confirm any details to him.

 

I sent my clients their final Wills along with the signing instructions. Mrs has now passed away and it has been discovered that they have in fact, signed each other’s Will. Is there anything we can do?

First and foremost, we would advise that Mr’s Will is re-signed as soon as possible.

As the Wills were produced in final form, it can be argued that it was clear she signed the incorrect Will. An application will need to be made for the rectification of her Will and the executors will need to seek professional advice regarding this. The executors will need to submit the Will to probate and prove the Will.

If there any witnesses at the time the Will was signed, it would be beneficial to obtain witness evidence.

 

I sent my clients Will to the wrong email address. I have tried to retrieve the Will without any success. I have told my client and apologised. Is there anything else I can do?

How many times have you sent an email to the wrong address because in a rush you started to type the address in and outlook pre-filled the rest of it in for you? We recognise this can happen but it is the steps you take to prevent this which is important.

Unfortunately, this would amount to a GDPR breach. The only thing the will writer can do is offer the client the sincerest apologies and some form of compensation as the will writer sees fit. There is no right or wrong answer here I’m afraid.

With regards to the breach, there would be a duty report it to the ICO. It is likely it will be classed as a minor breach and therefore unlikely that there will be a fine. However, the duty to report remains.

So back to what we were saying earlier about taking steps to prevent the above from happening…

A Will is a sensitive and confidential document and we would always recommend that is sent to the client with encryption. This can be sent password protected or by another means. If it is sent password protected, we would recommend the password is sent to the client via text message for example. If the password was sent by email also and the email was intercepted by a hacker for example, they would have all the information they need.

Another point and whilst it is easier said than done, take your time sending the email and double or even triple check the email address before you press send.

 

My client wrote their Wills with me 2 years ago. They don’t want to change anything in their Will. However, they do have a PPT in their Will for their previous address. Does the Will need to be re-written?

It depends. If after the address there is the wording “or any other property that is my sole or main residence at the date of my death” then the Will does not need to be re-written.

However, if this wording is not included, then you will need to re-write the Will and amend the address.

 

We drafted Wills for our clients in 2018. The Wills needed to be amended due to some error and a new Will was drafted and sent to the client for signing. The client has now passed away and it appears he signed the first incorrect Will.

In this instance, an application can be made to the court for evidence of the Wills contents in the revised Will being accepted in place of the original Will. If there is written evidence of the client requesting the amendments, the revised Will sent to them and the email from them to state the Will has been signed, this will all be useful. Each case will be dealt with on its individual facts so if the application is refused then the original Will will be valid.

Although we can appreciate that not all will writers may be able to attend all signing appointments, a huge advantage of attending is that you can ensure the Wills are signed and witnessed correctly.

We also highly recommend DRAFT watermarks are used on draft documents before the Will is accepted by the client to prevent any confusion.

 

I sent the final version of the Wills to my clients for signing and have still not received the signed Wills despite chaser letters and calls. Where does my responsibility end?

Once the Will has been sent to the clients for signature, if you have chased them and not heard anything, providing you have documented all this then your responsibility ends.

We would advise that you send the clients a final letter (adding a copy to your file) to advise that you have tried to contact them following the final Wills being sent and that you have not heard from them.

In your letter we would also recommend that you explain the consequences of the Wills not being signed correctly or at all so that you are covered.

We understand each scenario has its own set of circumstances so if you do require specific advice, please do not hesitate to get in touch with us by emailing [email protected].

 

Manisha Chauhan

Manisha joined the Technical Advice Team in July 2019 having previously worked as an Employment Solicitor in Warwickshire before relocating to Lincolnshire. Manisha provides advice on technical queries daily and works alongside Siobhan Smith also providing ongoing support on Sure Will Writer.

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