Legal advice for your best course of action
The importance of leaving a Will cannot be stressed enough – it allows the testator (person making the Will) to pass away safe in the knowledge that they have provided for their loved ones and that their assets will be distributed in accordance with their wishes.
Problems with DIY Wills
If a testator decides against the use of a solicitor to prepare their Will, mistakes are much more likely to be made, and these might lead to the Will being declared invalid. If this happens possessions would be distributed to family members according to the strict intestacy rules, and in most situations these will not reflect the testator’s original intentions.
Even if a Will is correctly drafted, it may not be clear enough to avoid disputes among potential beneficiaries after the testator dies. The simple incorrect use of punctuation for example could lead to questions into what was meant. This could lead to time-consuming and costly litigation, and the result of that would be less money to be distributed to the beneficiaries. In addition, an unregulated Will would not be covered by a professional drafter’s indemnity/liability insurance, so there would be no course of redress if things go wrong.
What makes a Will legally valid?
According to the provisions of the Wills Act 1837 and UK case law, for a Will to be valid, it must be made by a person (the testator) who has the requisite ‘testamentary capacity’ and who is aged 18 or over. It must also be signed by the testator in front of two independent witnesses, also aged 18 or over (who are not beneficiaries or related to the beneficiaries of the Will); the witnesses must in turn sign the Will in the testator’s presence.
A person will be judged to have testamentary capacity if, at the time the Will is drafted, they are capable of understanding:
- what is included in their estate;
- that the Will is made voluntarily and not under duress;
- that their assets will be bestowed on their beneficiaries; and
- the fall-out that may be caused by leaving or not leaving assets to certain potential beneficiaries.
- That their decisions are not biased by an untrue or incorrect delusion
Why might a Will be found to be invalid?
There are many reasons that a Will might be invalid, some of the most common being:
- the testator was not of sound mind when the Will was drafted;
- they were pressured (either physically, mentally, or emotionally) to draft the Will in a certain way by someone else;
- it was not signed properly (either by the testator or the witnesses);
- it has been altered or forged;
- it was confusing or unclear;
- the testator does not have enough assets to satisfy the gifts bequeathed under the Will (for example, if changes in the stock market impacted the value of their assets);
- That they had an incorrect belief or delusion that a family member had acted in a way, and excluded them from their Will solely because of that belief;
- the solicitor who drew up the Will was negligent and did not draft it according to the testator’s wishes; failed to complete the Will quickly enough and the testator died before the Will was signed; or they gave inadequate legal advice meaning the Will was open to challenge.
What are your options if you believe there is a mistake in a Will?
Technically, anyone can challenge a Will if they feel it is invalid, but it is usually only challenged by someone close to the testator, who would have expected to inherit and either did not, or they did not get what they were expecting.
There are three main actions you can take if you think that a will contains mistakes:
- asking a court to rectify the Will;
- suing the person or firm who drafted the Will for professional negligence; or
- contesting the Will.
Rectification
If an error was made in the drafting of the Will, so that it does not reflect the testator’s wishes – for example, the wrong beneficiary was named because of a typographical error when drafting, or because the Will drafter misunderstood the testator’s intentions – it is possible to make an application to the court for rectification of the Will under section 20 of the Administration of Justice Act 1982.
The court will need to see evidence that the testator’s instructions were not followed. This could involve a perusal of the Will drafter’s file/notes and any other documents that might shed light on the testator’s true intentions. It may also include witness statements taken from the Will drafter and the testator’s family and friends.
The time limits for bringing a rectification claim are tight: an application must be made within six months of the probate being granted, unless the court agrees to extend the deadline, which it might do if the person asking for rectification did not know of the death or the provisions of the Will in this time.
Professional negligence claim
A court will not grant a rectification application if an error in law is made in the drafting of a Will. In addition, if financial loss is suffered as a result of a mistake or the giving of bad advice by the Will drafter. In those circumstances a professional negligence claim is always an option.
If, for example, the Will was incorrectly executed (the signing and witnessing of the Will) because of poor supervision by the Will drafter; if the Will drafter missed out a beneficiary; or gave incorrect advice leading to costly and unnecessary tax implications; or if there was an unreasonable delay in preparing the Will; meaning it was not signed before the testator died; a claim can be pursued for compensation against the negligent professional.
Contesting the Will
There are a number of options open to a would-be beneficiary who wants to contest a Will.
If they were a dependant of the testator, such as a wife or child, who could expect to receive financially under the Will but they did not, they could bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision. Such a claim needs to be brought within six months of probate being granted.
Alternatively, if a person was promised something by the testator during the testator’s lifetime which did not materialise in the Will, and they relied upon that promise to their detriment, a claim for proprietary estoppel can be made. If successful, the court may order that they are given what they were promised. In such cases, the claimant must be able to show a promise was made, which they did not get and that they relied upon that promise, suffering a detriment as a result.
If they want to challenge a Will on the grounds of fraud, incorrect execution, duress, delusion, or lack of testamentary capacity, the best way to protect the position, so that negotiations can take place, is to lodge a caveat against a grant of probate being issued. This is only possible if the grant has not yet been issued and it essentially prevents a grant of probate being obtained until the dispute is settled or the caveat is warned against. If the challenge is successful, the Will may be declared invalid, and the previous valid Will takes its place. If no previous Will exists, or if the previous Will would have been revoked, say by marriage, then the rules of intestacy will apply. It is possible to contest a Will after probate is granted but this will be much more complicated, time-consuming and costly.
How we can help
If you believe something is wrong with the contents of a Will, you should consult a solicitor as soon as possible. They can advise you on the possible grounds for a challenge, and the best course of action in the circumstances.
For further information, please contact Helen Townsend in the Dispute Resolution team on 01733 882800 or email [email protected].
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