Preparing a Will is a stressful task. Once the task is accomplished, people feel more relaxed in the knowledge that their estate will be distributed according to their Will and wishes after their death. However, certain issues may arise if the Will has not been properly executed. This mainly happens when people opt for the cheapest route without putting too much thought or research into it. There are hundreds of companies out there selling Will writing services, but it is important to find an established Will writing service if you are to rely on a DIY will kit.
If a Will is not properly executed, it can cause various problems when your appointed executors try to get a grant of probate to manage your property. Additionally, if the Will is proven to be invalid, your wishes will not be executed in the way you wanted them to be, so it is important that you get it right before it’s too late.
Formal Validity of Wills
According to Section 9 of the Wills Act 1837, a Will is valid if:
- It is in the written format and signed by you (testator) or by another person in your presence and at your direction
- The testator intended to give effect to the Will by officially signing it
- The testator signs the Will in the presence of two or more witnesses at the same time
- Each witness then attests and signs the Will or acknowledges their signatures in the presence of the testator.
Some Common Problems with Wills
Invalid Execution of the Will
Mistakes are usually made when a solicitor or professional Will writer sends the documents to the testator for their signature. The chances are high that the testator is unaware about the guidelines provided by the Section 9 of the Wills Act 1837 and ends up violating them. Circumstances may arise where the testator did not have the witness around to acknowledge the signing process. Also, the testator has to remember that the witnesses mentioned should not be mentioned as one of the beneficiaries to the Will as it will then render the Will void.
A Will Becomes Invalid upon Marriage
If the testator has written their Will while they were single and then subsequently marries, their Will could be considered legally invalid. To avoid this, the testator has to mention in their Will beforehand that they want the Will to remain effective even after their marriage. If this is not done, the testator will have to draft a new Will after their marriage.
A gift in the Will becomes ineffective and can lead to partial intestacy because of:
- Sudden death of the beneficiary and no substitute beneficiary is specified in the Will
- The gift mentioned is no longer available or
- The gift is not described properly and can’t be identified
If the gift thus fails, it forms a part of the deceased’s property and is distributed as per the UK law and regulations. These rules specify the distribution of the property among the family and loved ones based on an order of relatives, which could be contrary to the wishes of the deceased person. A solicitor or Will writer fails to accurately draft a clause or fails to check if legal formalities have been followed
There have been several situations where the solicitor has failed to draft the Will in accordance with the testator’s wishes and demands. This includes mentioning a clause that has a vague meaning or misunderstanding the testator’s true intentions. It is obvious that any misunderstanding concerning the testator’s intention can cause issues later after their death. Hence, it is the responsibility of the testator to go through their Will carefully before they sign it.
Wills made in the UK are applicable on all the moveable assets across England and abroad. Additionally, they are also applicable on immoveable assets (real estate) in England. To handle your real estate in different countries, a clause is required to be mentioned in your Will. It is usually recommended to have different Wills in each country you have properties in, as the foreign law may not recognise your UK Will as a legal document in their country. If foreign law fails to recognise your UK Will, your immoveable assets forcefully fall under local heir-ship succession rules.
You can make an application to the Court for rectification of an invalid Will. The rectification could be due to clerical error or failure to understand the testator’s instructions. A clerical error is made by a solicitor, clerk, typist or the testator themselves when they try to add something by mistake or eliminate something they intended to insert. Rectification of the Will is authorised even when it has the power to convert an ineffective contract into an effective one. During rectification, the Court considers the testator’s intention and then decides whether the Will shall be rectified or not. The testator will have to provide evidence for permitting this purpose.
Professional Negligence Claim
If rectification of the Will is not a suitable option for you, you can opt for a professional negligence claim against the solicitor that negligently prepared your Will. Over the years, claims were only brought forward by people who suffered huge losses, as the solicitor owed a duty of care towards them. Moreover, this started creating problems in probate cases where the testator had passed away and no claim could be further made for professional negligence when the negligence was highlighted.