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What makes a Will valid or invalid?

A Court of Appeal decision has highlighted once again the importance of making a properly executed Will and shown the problems that can arise when people try to create homemade Wills which don’t comply with the law.

The case revolved around Kenneth King’s claim that his animal-loving elderly aunt, Mrs June Fairbrother, aged 81, had promised him her home when she died in the hope, he alleged, that he would care for her pets till the end of their lives.

A Will without a witness

Although she had a Will from 1998 leaving the property to seven animal charities, she wrote a signed and witnessed a note saying she left her house and property to Mr King and then two months before her death, signed a Will, without a witness, that Mr King presented to her.

When she died in April 2011, the charities expected to receive their legacies because none of the documents she signed prior to her death complied with the Wills Act. But the High Court found in July 2014 that she had verbally gifted her home to her nephew on her death bed, overriding her original Will.

Time and capacity to make a new Will

However, after the charities appealed, in June 2015, the Court of Appeal looked at the requirements for a valid death bed gift – an ancient legal principle – and decided that although aged 81 and aware of her deteriorating health, Mrs Fairbrother had no reason to expect to die imminently and there was no evidence that she had been suffering from any specific illness.

It concluded that she had both the time and capacity to approach her solicitors to make a new Will, leaving the house to her nephew, if she had wished to do so.

The Court decided that although Mr King should receive £75,000 as a dependent, the animal charities – including the Chiltern Dog Rescue Society and the Blue Cross Animal Centre – were entitled to the remainder of the retired police officer’s estate.

Making sure your Will is valid

It is vital to ensure that:

  • You get professional advice about reviewing or creating your Will from a Society of Trusts and Estate Practitioners (STEP) and Solicitors for the Elderly (SFE) qualified solicitor;
  • Your Will is in writing, signed by you, and witnessed by two people;
  • You have the mental capacity to make the Will and understand the effect it will have;
  • You have made the will of your own volition and without pressure from anyone else.

The beginning of the Will should say that it revokes all others. If you have an earlier Will, it should be destroyed.

Signing the will

You must sign a will in front of witnesses. It can also be signed on your behalf, as long as you are present and it is signed at your direction. This usually happens if someone is blind, illiterate, incapacitated or too unwell to sign the Will by themselves. However, they must have the mental capacity to make the Will, otherwise the Will is invalid.

Any Will signed on your behalf must contain a clause saying you understood the contents of the Will before it was signed.

If you are have a serious illness or a diagnosis of dementia, you can still make a Will, but you need to have ‘testamentary capacity’ (mental capacity to make a will) to make sure it is valid. You may need a doctor’s statement certifying you understood what you were signing.

Witnessing the will

Your signature must be witnessed by two adults. They must also sign the Will in your presence.

The witnesses, or their husbands, wives or civil partners, are not allowed to benefit from the Will. If anything has been left to the witnesses, the rest of the Will remains valid, but the witness will lose their entitlement to whatever you had intended to leave them.

An executor can witness the Will, unless they are a beneficiary.

For advice on making a Will, please contact our Wills, Probate and Mental Capacity Team.

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