How to ensure a will is valid and avoid disputes- Part 2
In part one we looked at testamentary capacity. In this second article we discuss the issue of whether the testator both knows, and approves of, the contents of the will.
Of course, a testator cannot truly know and approve the contents of the will unless they have testamentary capacity (as explained in part one) and are therefore able, and do, understand what they are doing and its effects.
Another prerequisite for a valid will is to adhere to the formalities provided by Section 9 Wills Act 1837. This is an essential part of establishing the testator’s knowledge and approval of the will.
The will must be in writing and signed by the testator, or another person while in their presence and under their direction. It must be apparent that the testator intended that their signature (or that given by direction) were to give legal effect to the will. The will signing must be made or acknowledged by the testator in the presence of at least two witnesses. These must be present at the time of signature, or the acknowledgment of the testator of their signature. Each witness must then sign the will in the presence of the testator, but not necessarily in the presence of the other witness or witnesses.
Knowledge and approval of the will by the testator are generally established by the person wishing to uphold the will as being valid. Where the will is read to the testator before its actual execution, it creates a presumption that the will represents the testator’s intentions. The presumption exists because the court is very cautious about accepting challenges to wills.
There may be circumstances regarding the preparation of the will that raise the suspicions of the court. An example would be if the solicitor or will writer who drafted the will is a beneficiary of the testator. In these cases, the presumption of knowledge and approval is overridden and the person wishing to uphold the will must provide evidence of knowledge and approval by the testator.
It is worth pointing out that there is no such presumption of knowledge and approval where the testator is deaf, blind or has not personally signed the will.
To help ensure due execution, and to cover issues of knowledge and approval, it is best practice for the execution of the will to take place at the solicitor or will writer’s premises. That way it will be easier to check if witnesses are independent and that the provisions of Section 9 Wills Act 1837 are followed. Blind witnesses of the testator signing the will cannot be used, and minors and persons of bad character should be avoided in terms of choosing witnesses.
In part three, we shall look at undue influence being brought to bear upon the testator.
If you want to challenge the validity of a will, or to defend such a challenge, please contact me directly via matthew.ellis@GAsolicitors.com or call 01752 203500.
If you want to make a will, please call GA’s wills, trusts and probate department on 01752 203500.