Making sure that your “last will and testament” is a valid, legally sound document, is as important as that phrase makes it sound. Jack Ackrill, a Solicitor with the Contentious Probate team at The Wilkes Partnership, offers some timely advice to anyone who is considering making a will, or is dealing with the aftermath of a poorly constructed one “Making a will is a very personal thing to do as it sets out your intentions and wishes as to how your estate, money and property, should be dealt with following your death. Without proper legal advice during and prior to the execution of that will, loved ones, family, and friends could find themselves dealing with some very difficult and unintended consequences”.
Seeking the advice of a solicitor, with experience in the matters of wills, probate, and perhaps contentious probate, will help to minimise any risk. It will also ensure that the will that is presented after your death is considered to be valid, and that it accurately represents your wishes.
The validity of a will can be called into question for a variety of reasons but, first and foremost, the testator (the person who is making the will) must intend for it to be valid when they are signing it. The document must also:
- be in writing
- be signed by the testator. If this is not possible, it must be signed by someone in the presence of the testator who is acting under their direction
- be signed by two witnesses, neither of whom should be beneficiaries under the will, and both should be over the age of 18 and of sound mind.
Jack continues “Including an attestation clause in a will provides, to some extent, a record of the circumstances under which the will was signed and witnessed. It can offer some degree of protection if questions arise about the validity of the will, but it isn’t completely bullet proof”.
If a will with an attestation clause appears to be valid, it is presumed to be so unless one of the following can be applied sufficiently and, on balance of probabilities, rebuts that presumption:
- lack of testamentary capacity: a person’s mental ability to make or alter (i.e. via a codicil) a valid will
- want of knowledge and approval: the person making the will must have knowledge of what it contains and must approve of that content
- undue influence: the testator is coerced or is subject to influence sufficient enough to overbear their free will.
Finally, Jack said “If someone has passed away and there are concerns that their will does not reflect their wishes, it is essential that legal advice is sought immediately and investigations begin before the administration of the deceased’s estate. There are remedies available against executors who dispose of estate assets prior to the outcome of a successful claim, but it is not in the best interests of those concerned to allow the executor to make those dispositions. Recovering those assets back to the estate can also raise some very complex, costly and time consuming issues.”
The Contentious Probate team at The Wilkes Partnership advises executors and beneficiaries on disputed wills and trusts. If you have any concerns about the validity of a will, or you are defending allegations made against a will under which you are an executor or beneficiary, please contact the team on 0121 233 4333 or email Jack at [email protected]