David Young discusses the pitfalls of do-it-yourself Wills.
The Covid-19 pandemic has caused many, unsurprisingly, to review and update their testamentary wishes, and revise Wills; but although in many cases no problems are encountered, there are potential pitfalls for the unwary, the more so if no professional advice from a solicitor has been sought.
I set out below the broad legal framework within which the validity of Wills is considered. Contentious Probate work (making and defending claims relating to validity of Wills) has increased dramatically over the last 20 years or so, fuelled in no small part by the preparedness of some to try to cut corners and save the cost of employing an experienced solicitor to advise; such is false economy, sometimes resulting in the testator’s wishes being frustrated (where the Will is found to be invalid) and significant costs being incurred in the dispute resolution process.
- There are a number of ways in which the validity of a Will can be challenged: if the deceased lacked the requisite testamentary capacity; if the terms of the Will can be shown not to have been known and approved by the deceased; if one of the beneficiaries exercised undue influence over the deceased so that they were persuaded to change the terms of the Will to benefit that beneficiary; or if the Will itself was not properly executed in accordance with the Wills Act 1837.
- The test of testamentary capacity is set out in the case of Banks v. Goodfellow (1870). To have capacity the testator must: i) understand that he is signing a document setting out how his possessions are to be disposed of upon his death: ii) have an understanding of the extent of his property and assets; iii) be aware of the existence of those who might have a moral claim on their estate; and iv) have an understanding of how the Will distributes his estate between the beneficiaries. Where the terms of a Will appear to be rational the assumption will always be that the deceased had the required capacity unless genuine doubt is raised, and this will not change even if the deceased can be shown to have suffered a mental illness. However a diagnosis of dementia for example, made around the time the Will was signed, will give rise to questions about the validity of a Will and therefore solicitors are expected to consider the capacity of an elderly or unwell client when taking instructions to prepare a Will.
- Knowing and approving of a Will means that the testator must be aware of the terms of their Will (eg. by having it read to them) and approve of the content. If it can later be shown that the terms of the Will was not what the deceased wanted then an interested party can seek to have the Will declared invalid by, for example, asserting that the deceased was too unwell to understand the contents of the Will or that the Will had not been read out to them before it was signed. There is often an overlap between “knowledge and approval” claims and capacity and/or undue influence.
- Undue influence might be suspected if the terms of the deceased’s Will are surprising, unexpected or depart from the pattern followed in previous Wills. To have a Will declared invalid on this basis means proving that the deceased had fallen so far under the influence of another person that they were coerced into making a Will to benefit that person. Recent case law shows that it is necessary to show that the only explanation for the Will being made in those terms is that the deceased was coerced. This is a high bar to reach, and successful challenges to Wills on the grounds of undue influence are rare.
- In order to be valid the Will must be in writing, the testator must intend to give effect to the Will by signing it in front of two witnesses who are both present at the same time. If it can be proven that any one of those conditions is not met then the Will is invalid.
Contesting a Will can be expensive. If proceedings are issued and are fully contested to a final hearing then the costs can often exceed £100k. Even if the Court is not involved the costs can escalate very quickly. Because Will disputes tend to be between family members the level of acrimony can be very high but it is essential to consider Alternative Dispute Resolution at an early stage; most cases are capable of being settled once the reality of the risks of litigation and the attendant costs have sunk in.
So, the message is to seek competent advice from an experienced solicitor when contemplating who you would wish to benefit from your estate. Such will minimise the risk of any subsequent challenge to a Will (and, at the same time, give rise to an in-depth analysis of tax issues). If it’s too late for that and issues have already arisen, then I and my colleagues in the Contentious Probate Department will be happy to see you to identify options and assist in selecting the best one.