How to ensure a will is valid and avoid disputes- Part 1
Why should people look for reputable solicitors and will writers when they want to make a will?
There are a lot of reasons for this! Professional estate planning may have tax advantages, and advice can be given to mitigate (and perhaps avoid) claims being made by disgruntled beneficiaries.
However, steps must be taken to overcome avoidable validity issues when making a will. This is particularly true where the person is old, infirm, very sick or otherwise vulnerable. Fraudulent wills are still quite rare but they are on the increase. We can help where a dodgy will is suspected, but in the vast majority of cases fraud can be avoided simply by following the guidance available in law.
The potential reasons for finding a will to be invalid are looked at in four parts:
- Mental capacity
- Lack of knowledge and approval
- Undue influence
- Fraudulent calumny
The solicitor should ask about the testator’s health and to see any previous wills. The testator should be asked why, if such is the case, any long-standing gifts or gifts of a different nature in previous wills are removed altogether or significantly altered.
The solicitor will probably insist that instructions are taken in the absence of third parties and, in particular, any of the main beneficiaries or those likely to hold sway with the testator.
A draft of the will should be sent to the testator within days and no more than a week. The engrossment of the will should be ready for execution within a similar period.
It is best practice to arrange, whenever possible and practicable, to arrange for execution of the testator’s will at the premises of the solicitor. The will’s validity is enhanced if it is drawn up and executed at the offices of an independent and experienced solicitor, particularly where the will is drawn up upon the testator’s instructions and is read out and explained to the testator.
Any doubts about these aspects may be investigated by asking to see the solicitor’s or will writer’s file. The importance of these issues highlight the need to have a will properly made, and the potentially costly consequences of not doing so.
Mental capacity, or testamentary capacity, is mentioned above as one of the most important requirements for a will to be valid.
The correct test for testamentary capacity was established in the case of Banks –v- Goodfellow (1870). The testator must know and understand the purpose of making a will and its implications. They must also know the extent (as opposed to exact value) of their property and appreciate the entitlements of others, perceived or otherwise. The solicitor should check that the testator is not suffering from a mental illness or disorder that could change unduly who will be the beneficiaries. They may also ask a medical practitioner to witness the will and to give an opinion as to the testator’s capacity when the will is executed.
Usually capacity must be tested and established at the time the will is executed. However the rule in Parker-v-Felgate (1883) states that the will may remain valid even if the testator loses capacity when the will is signed and witnessed, if capacity existed at the time the will instructions were provided. The will prepared must reflect and be consistent with those instructions. When the will is executed the testator must recall giving instructions for a will and accept that the will in question reflects those instructions, although precise recall is not required.
The burden of proving testamentary capacity
The burden of proving that the will is valid, and that the testator has mental capacity, falls upon the person wishing to hold up the will as being valid. If at first instance the will appears to be rational, in that it makes sense grammatically and legally, it is presumed to be valid. If evidence is provided to raise a real doubt as to the mental capacity of the testator, the burden of proving otherwise then shifts to the person who is challenging the validity of the will. Where such evidence raises a real doubt, the burden of proof reverts back to the person who wishes to uphold the will.
In part two, we shall look at whether the testator knew and approved the terms of the will.