Will making and Will disputes
It is more important than ever to make a Will or ensure that your Will is up to date, to avoid difficulties for your Executors later, and to avoid the possibility of any dispute over your Will or assets.
Wills should be reviewed regularly to make sure that it properly reflects your wishes for your Estate at the current time; you might have new assets, new grandchildren, or other people you want to include.
Disputes about Estates and Wills are on the rise. If a Will leaves out someone who expected to be provided for or is significantly different to what had been indicated by the person making the Will, a challenge or dispute might arise.
There have also been increases in homemade Wills, or ones made by will writers (who are not qualified solicitors). Whilst the majority of these are done properly, some are incorrectly drawn up or executed and so may be invalid. They may not accurately reflect what the person wanted to do with their Estate. Mistakes in the Will can lead to costly litigation or invalidate the Will. Wrongly drafted or poorly worded clauses can lead to problems; as can trusts which are not set up properly. These can lead to disputes about the Will or difficulties in implementing the terms of that Will. Because will writers to not have to be insured (unlike solicitors) it can be problematic making a claim against them and recovering any losses caused by a poorly drawn up Will.
Capacity to make a Will
The person making the Will must have mental capacity. Assessing mental capacity can be difficult, so if the person making the Will is elderly or ill, they should be advised to obtain medical evidence that they have the proper mental capacity at the time of the Will. This will help provide evidence of their capacity if the Will is later challenged. In order to have testamentary capacity, they must be able to understand the nature of a Will and that they are creating a legal document to distribute their Estate, they must understand and give information about the extent of their Estate and their assets, as well as understanding the possible claims from people who might expect to be provided for under their Will (even if they do not choose to provide for them), and not have a ‘disorder of the mind’ that would affect any decision about who to leave their assets to (the Banks v Goodfellow test).
Instructions for the Will
It is important that a Will is clear and reflects the true wishes of the person making that Will. So being able to discuss with and obtain advice from an experienced and qualified professional is important, especially if your Estate or wishes are complicated, or if you wish to set up any trusts. Making sure the Will is properly drafted to reflect those wishes can help avoid disputes later on and avoid the need to rectify the Will or agree any variations with the beneficiaries.
Having someone else there when instructions for the Will are given can sometimes lead to accusations of undue influence or pressure being put on the person making the Will, and this can lead to challenges to the Will.
Ensuring there are clear records of any meetings, instructions for the Will and any advice given is also important in case of any later argument, so that the wishes and instructions of the person making the Will can be later clarified in case of any issues.
Executing the Will
A Will must be in writing, be signed by the person making the Will (or directed by them to be signed for them) and witnessed by two witnesses who are there at the same time. The spouse / civil partner of the person making the Will, or beneficiaries named in the Will, cannot be witnesses.
In this current climate, it can be more difficult to properly execute a valid Will. If the Will is not properly executed, it will not be valid. There is a temporary law in place from 31 January 2020 to allow the valid witnessing of Wills and Codicils through windows, open doorways and via live video link, as long as there is a clear line of sight between both witnesses and the person signing the document. It is crucial to make sure the rules are properly complied with, as any doubt or problems can lead to challenges about the validity of the Will.
If you are thinking of making or changing your Will, or you have concerns about the contents or validity of a Will, please get in touch with us for more information and advice.