July 19th, 2011
What makes a Will valid or not valid?
A recent decision of the High Court of Justice has considered the requirements of Section 9 (a) of the Wills Act 1837…in short, what makes a Will valid or not valid. The original act sets out that in order for a Will to be valid, it must be ‘in writing and signed by the Testator (the person whose Will it is), or by some other person in his presence and by his direction’.
A recent judgment, however, has threatened to turn this age-old understanding on its head. It concerned a re-trial of the claim ordered by the Court of Appeal on the 04th October 2010, in which judgment had been given in favour of the Claimant, where it was held that the Will made by the deceased, was invalid.
The background
The background to the case was that the deceased (Martin Lavin) died on the 11th January 2004, a few hours after making his Will of the same date.
Under the terms of his Will his entire estate was left to his sister, who was also appointed executor.
The validity of the Will was challenged by the Claimant, Michael Barrett. He claimed that the 2004 Will was invalid on the basis that it had not been signed by the deceased. He sought to revoke the Grant of Probate made to Ann Liston in relation to the 2004 Will.
During the course of proceedings it became apparent that the deceased had made an earlier Will on 02nd October 2002, which appointed the HSBC Trust Company (UK) Limited as executor and trustee, and divided the deceased’s estate between various family members including two nephews, a niece and a great niece.
The dispute in relation to the 2004 Will centred on the circumstances surrounding the signing of the Will by the deceased and whether the deceased’s hand was guided in signing the document, due to his inability to sign it himself, or whether it was signed by Ann Liston, the beneficiary and executor, on Martin Lavin’s direction.
At the re-trial the court had to consider new evidence from a number of witnesses, including the nurses who had witnessed the 2004 Will. Further evidence came from expert witnesses, as to the validity of the signature.
The outcome
Having considered all of the evidence, the court held that the Will was validly signed by Ann Liston, at Martin Lavin’s direction, and therefore that it complied with the requirements of Section 9 (A) of the Wills Act 1837.
The Court considered whether the 2004 Will was still valid even though effectively it was signed on behalf of the Testator by the beneficiary but concluded that it was nevertheless still valid, notwithstanding the provisions of Section 15 of the Wills Act 1837 which applies only to attesting witnesses and not beneficiaries.
How is this relevant to you?
This case illustrates the importance of ensuring that a Will is correctly signed and witnessed, in order to minimise the risk of expensive litigation over your estate. When Wills are prepared without the benefit of expert legal advice there is a greater risk that your Will will not comply with the provisions of the Wills Act 1837, therefore rendering it invalid.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or be constituted to be legal advice. We cannot accept responsibility for any loss as a result of any acts or omissions taken in respect of this article.