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.