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Validity of Wills

Why a will is important

A will is the only document that allows a person's property to be treated according to their wishes after they die. Without a valid will a person will have died "intestate" and their property must be treated according to the laws of intestacy. A will also names the people who can perform the function of "executor" - i.e.. obtain a Grant of Probate and distribute the estate according to the wishes of the deceased (the "testator"). If the deceased had children under the age of 18 the will may state who should look after them.

Requirements for a valid will

If the will has been drawn up by a solicitor you can be reasonably confident that it is valid. The exceptions to this are:

  • If a more recent will exists (and contains a revocation clause)
  • If the testator has married or entered a civil partnership (unless an imminent marriage is specified)
  • A written document revoking the will exists
  • You think it may be a forgery

Even if a solicitor has been used it is not unheard of for a will to be challenged. This would usually be either because the wishes of the deceased were not correctly followed (the solicitor was negligent) or because a person believes they were insufficiently provided for. Contested wills are becoming more common and unfortunately they make the probate process much more complicated and also tend to be very expensive. If the will has been drawn up using an unregulated will drafter or is self-penned it is more common for these to be invalid. In order to be valid, in addition to items above, a will must satisfy the following:

  • The deceased must have been over 18 when it was made
  • The deceased must have understood what they were doing
  • There must have been no coercion involved
  • The will must be written, typed or printed - audio or video are not allowed
  • The will must be signed by the testator in the presence of 2 witnesses
  • The 2 witnesses must have signed the will Any codicils (additions to the will) have the same requirements for validity.

Contested wills

The will may have been contested for one of the following reasons:

  • The person making the will lacked the mental capacity to do so;
  • The person making the will was acting under undue pressure from one or more other parties;
  • Someone considers that they should have been provided for in the will as they were financially dependent upon the testator before they died

If a will is contested then the person making the “challenge” may have applied to the Probate Registry to enter a caveat. If successful, a caveat will prevent the executors or administrators from obtaining probate until such time as the contested issue has been resolved. Under such circumstances the executors should always obtain legal advice.

When to use a Solicitor

If you are unsure or have any doubt whatsoever about the validity of the will, whether it has been contested or about the meaning of it, you would be very well advised to ask a solicitor. The potential executor liabilities if you make a mistake are not worth the risk if you are not used to interpreting wills. Remember that probate gives you the authority to pay for professional advice. In fact your responsibilities when undertaking probate oblige you to do so if you have any doubt about your skills or knowledge. If the entire estate was jointly owned or if it all passes to a spouse or civil partner then the probate process will be simplified and a solicitor is not likely to be required. However, you may wish to consider varying the will and you will certainly need a solicitor to deal with this.

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