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How To Tell If A Will Is Legally Binding

Posted: Wednesday, 25 September 2019 @ 10:57

When a family member dies it can be reassuring to learn that they chose to put their estate in order by making a will. Unfortunately, there are circumstances when this reassurance dissipates when you realise that the will may not be legally binding. 

So, how can you be sure your will, or the will of a friend or relative is legally binding?

Check Your Formalities

No Will is valid unless: ·        

  • It is in writing, and signed by the Testator (person making the will), or by some other person in his presence and by his direction; ·        
  • and it appears that the Testator intended by his signature to give effect to the Will; ·        
  • and the signature is made or acknowledged by the Testator in the presence of two or more witnesses present at the same time; ·
  • and each witness either: attests and signs the Will; or acknowledges his signature, in the presence of the Testator (but not normally in the presence of any other witnesses), 

In the event these formalities are not complied with the will reverts to intestacy and the will is invalid.

 Who Can Prepare a Will?

Anyone can prepare a will. Nevertheless, suspicion will be raised if the person who prepares it is a major beneficiary, a close relative of a major beneficiary or a partner of a major beneficiary. There is no rule that prohibits one of the above preparing the will but suspicions will be raised and could result in the will being challenged.

The Issue of Mental Capacity

This can be a serious issue in many cases – wills are commonly disputed by family members and beneficiaries who feel the will was made at a time the testator was not ‘of sound mind’. The common law standard was laid down in Banks v Goodfellow and remains the leading case which is that the testator must: ·        

  • Understand the nature of his act (sound mind) that is he is making a will and its effects  
  • Understand the extent of his property being disposed of (sound memory) though he/she not need to remember every one of his assets ·        
  • Be able to comprehend and appreciate the claims to which a person making a will ought to give effect (sound understanding)

These measures of sound mind, sound memory and sound understanding are important when looking at the validity of a will. If any are in question the will may not be legally binding.

When making a will it may be necessary for the will to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination and finding.  This would be the case if the testator is  ‘aged’ or have suffered a ‘serious illness’. What is considered  ‘serious’ for this purpose, and how old ‘aged’ is a moot point and again demonstrates the importance of engaging a specialist will and estate planning solicitor to prepare the will.

The medical professional chosen as a witness in such cases may be the GP, but this will depend on the degree of concern about capacity and whether a medical specialist may be required to provide their approval, for example in cases of someone particularly frail.

Next Possible Steps 

If you have concerns about the validity of a will on the grounds of mental capacity, or undue influence and persuasion it is important to take legal advice as there are several legal tests that will need to be considered in order to raise an objection. Given the complexity of the law check with a specialist will and estate planning lawyer prior to taking your next steps if you have doubts about the validity of any will.