When a will is executed incorretly

20th January 2015 by

Ben Parr-Ferris, Senior Litigator, Contentious Probate team of Healys, continues his series of articles explaining the different ways in which Wills and Probates are contested. 

There are strict requirements for the execution of Wills that are laid down in the Wills Act 1837.  If the requirements were not followed the Will is not valid.  In some cases that might mean that an earlier Will applies instead, but in many cases it means that the intestacy rules decide how the estate will be divided.  In either case, the Will in question will be ignored.

Whilst there are some exceptions to these rules, the usual requirements for a Will to be valid are:

  1. The testator must have been 18 or over when the Will was made
  2. The Will must be in writing signed or marked by the testator
  3. The testator must have intended to give effect to the Will when he signed it
  4. When the signature is made by the testator two witnesses must be present at the same time
  5. Each witness must also sign the Will

In the vast majority of cases, a solicitor is instructed to prepare the Will and the solicitor oversees the execution.  In those cases it is rare for the requirements not to be met although that is not always the case.  Questions over whether the Will has been executed properly usually arise where the testator has prepared his own Will, or a Will prepared by a solicitor has been executed by the testator without the solicitor attending.

If there are suspicions that the requirements have not been complied with, the first step is often to gather evidence of what happened when the Will was executed.  This may involve sending a formal request for information to a solicitor who was instructed to prepare the Will, and contacting the witnesses to ask them for the details of what happened.

Case Study Example

In a case handled by Healys, our client was the executor and beneficiary of the Will of an elderly friend who had made a Will several years before his death leaving his entire estate to our client.  A family member of the testator who had not been in touch with the testator for many years made allegations that the Will had not been executed properly and applied for a grant of letters of administration as if there was no Will.  He intended to take the whole estate himself as the sole surviving relative of the testator.  The testator had overseen the execution himself so there was no solicitor who could give evidence.  Despite the time that had passed since the Will was executed, Healys traced both witnesses and obtained from them detailed evidence of the circumstances of the execution.  When Healys presented that evidence to the family member’s solicitors,  the claim to be entitled to the estate was withdrawn and our client obtained probate of the Will.

If you require any further information on this topic or the services we offer please contact Ben Parr-Ferris on 020 7822 4104 or email ben.parr-ferris@healys.com.