The number of DIY Wills may be increasing, but their popularity comes at a cost.
The lack of clarity and certainty in many home Wills has led to an escalation in the number of people challenging these Wills. Who is bringing these legal challenges? Well, it’s basically anyone who feels aggrieved by the contents of the Will: people who feel that they did not receive what they believed was rightfully theirs.
Is it easy to challenge a Will? Well, yes – but there’s a big caveat that needs to be added to that statement. The only time a Will can be challenged is if it has not been properly executed. If that can be proven, then the Will be deemed invalid and will not be admitted to probate. What this could then mean is that the people who the testator wanted to benefit are left out in favour of those who inherit under the rules of intestacy. So challenging a Will can be problematic, and that’s why it always pays to consult an expert like Harold Stock & Co.
What are the legal requirements for making a Will?
The requirements for making a Will are firstly that the testator must be aged over 18, or of privileged status. Privileged status is set out in section 11 Wills Act, 1837, and includes the likes of soldiers on active service and sailors at sea. In order to make such a privileged Will, the testator must show an intention to make a Will, but does not have to observe the other formalities, such as putting it in writing. That’s why there have been cases where oral privileged Wills have been proven.
The formalities which have to be observed when making a Will are set out in Section 9 of the Wills Act 1837:
- The Will must be in writing (except in the ‘privileged’ cases highlighted above).
- The Will must be signed by the testator – but it needn’t be a formal signature as anything intended to be a signature will also count. Historically there have been cases of inky thumbprints and the testator’s initials being accepted by the courts. This is unlikely to be replicated these days as literacy skills have advanced significantly, and access to pens and paper are no longer rationed. The testator needn’t sign the Will personally: another person can sign on the testator’s behalf, so long as the testator is present in both a physical and mental sense and it is done at his or her direction. Such situations can occur where the testator is close to death and so unable to physically hold the pen.
- The testator must intend to give effect to the Will by signing. Therefore it follows that the signature must not be conditional and must not rely on another condition being satisfied to be valid.
- The Will must be witnessed by two people, who must see the testator signing the Will. They don’t have to know what they are signing, or need to see the remainder of the document: all have to do is see the testator signing.
- Once the testator has signed, the witnesses must afterwards sign or acknowledge in the presence of the testator.
In most Wills there will be an attestation clause setting out the fact that the Will has been properly signed and witnessed.
This will give rise to a presumption that the Will has been properly executed. Anyone wishing to challenge this will have to present very strong evidence to prove that this has not happened, such as statements from the witnesses to say that they were not present together at the time of signing. Naturally this will never be an easy thing to prove.
Harold Stock solicitors’ advice on this matter is simple: if you wish to challenge the contents of a Will, then get advice from the experts. Consult a qualified solicitor like Harold Stock & Co.
For further information on Wills, probate and estate management contact Harold Stock & Co Solicitors on 01457 835597 or email info@haroldstock.com
