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What makes a Will….?

Posted on 13 October 2017 by Leanne Routledge

What makes a Will….?

There has been a lot of press recently about the High Court upholding a poorly drafted Will. The case concerned a gentleman from Montenegro, who had lived in the UK for decades but had never become fluent in written English.

He prepared his own Will, which was not drafted in a formal style. Although, the Will was signed and witnessed there was no executor appointed and there was no formal signature clause. This caused problems with the Probate Registry when an application for the Grant of Probate was made.

There were also problems with the gifts made in the Will, in that some of the charities mentioned did not exist, there was a gift to the ‘Serbian Orthodox Church’, but no mention of the exact Church he wished to benefit. There were also unsigned alterations.

Technically, all of these issues could have led to the Will being declared invalid but steps were taken to remedy some of the issues. For instance, evidence was taken from witnesses to the Will and an application to the Attorney General dealt with the charity issues. However, there were some issues that could not be dealt with so easily and the case came before the High Court who, after looking at literature on badly drafted Wills and evidence of Montenegrin law, felt that they could ascertain the gentleman’s intentions and allowed the Will to stand.

Cases like these are rare and it is unusual for the Court to be so lenient. So, what does make a valid Will?

The rules for a valid Will are laid out in the Wills Act 1837 and state that a Will should be in writing, signed by the Testator (the person making the Will) and signed in the presence of two witnesses who should be present at the same time.

The Will does not necessarily need to be typed and can be handwritten. Surprisingly, a Will does not even need to be written on paper and in one case a Will written out on an empty egg shell was held to be valid! However, the traditional paper and ink combination is recommended to avoid a costly Court hearing!

If the Will is not drawn up by a professional then care needs to be taken, as suspicions will be raised if the Will is drawn up by a person who is a beneficiary, a close relative or married to a close relative.

Who can witness a Will? In 1837 when the Wills Act came in to force certain people were legally prohibited from acting as a witness to a Will, for instance those with no religious beliefs, women and non land owners. Thankfully, these rules have now been relaxed and the only limitations seem to be that a witness must be an adult, independent (not a relative or a beneficiary) and of ‘sound mind’.

Certain Wills are not bound by the usual legal formalities, for instance a soldier or sailor on active service can make an oral Will.

Care also needs to be taken if alterations are made to Wills, as unless they comply with the Wills Act formalities then the Will could be invalid

If you are in any doubt about the validity of a Will then always seek professional advice, as the costs of dealing with an incorrectly drafted Will on your death nearly always exceed the cost of having a Will professionally drawn up.

If you have a query about a Will, why not make an appointment to speak to one of our specialists? We also hold Legal Clinics at The David Hall, Roundwell Street, South Petherton TA13 5AA on alternate Wednesdays from 9am to 12pm. You do not need an appointment and can pop in. We also offer home visits to those clients who wish to make a Will, but cannot physically attend one of our offices or clinics. For further information, please telephone 01935 382680 or email leanne.routledge@pardoes.co.uk

Posted in: Wills, Wealth Protection, Trusts & Tax Planning, Probate and Estate Administration, Elderly & Vulnerable Client Affairs, Court of Protection & Powers of Attorney