Making a Will? The formalities are strict so always consult a Lawyer first!

The formalities that must be met when making a will are strict and failing to adhere to them to the letter can result in your wishes being frustrated after your death. That is exactly what happened in one case in which a generous mother’s final will was declared invalid by the High Court.

What happened?

The woman and her husband had made mirror wills in common form, leaving their estates, which were together valued at around £2 million, to each other. When the survivor of them passed away, four fifths of his or her estate was to be divided between their daughters, with the remaining fifth passing to their son.

Following her husband’s death, however, the mother made a new will so as to leave her estate to her three children equally. The son launched proceedings with a view to having that will admitted to probate, but faced objections from his sisters, who argued that the document had not been properly executed.

In ruling on the matter, the Court noted that there was no allegation that the mother lacked the mental capacity needed to change her will or that she had been subjected to undue influence by others. The will had been drafted by her son in accordance with her expressed wish to be even-handed between her children and she had full knowledge and approval of the document’s contents.

The will appeared to have been duly executed on its face and a strong presumption thus arose that all the formalities required by the Wills Act 1837 had been complied with. However, the Court found on the evidence that that presumption had been rebutted and that the will therefore could not stand.

The Act stipulates that a will maker’s signature must be appended to the document in the presence of at least two witnesses, who are present at the same time. The Court, however, accepted one of the witness’s emphatic testimony that he had not seen the mother or the other witness sign the will. The mother had been in another room of the house when he signed the document.

The outcome

The Court found that, given his mother’s failing health, the son had been anxious to get the will signed quickly. In the knowledge that the will represented his mother’s true wishes, he had not enlisted the help of a solicitor and had cut corners on the proper procedure for execution.

The mother’s earlier will was also of no effect in that it had been shredded by her son, on her instructions. It had thus been revoked by destruction. The Court heard further argument as to the consequences of its ruling.

We asked our Chartered Legal Executive and Head of Private Client, Janine Guthrie, her thoughts on the article. Janine comments that “this article shows the need to consult a qualified Lawyer when making a Will to ensure all the formalities are complied with”.

If you need assistance drafting or updating your Will, contact our Will Specialists on 01452 222445 to make an appointment today. We will ensure that you and your loved ones are protected.

Burgess v Penny & Anr. Case Number: HC-2017-001178


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