– VALID OR NOT?
Challenges to the validity of Wills are not as common as people may think. Specialist probate disputes lawyer, Nicola Turner, considers how COVID-19 may impact on the number of challenges
In ‘normal times’ challenges on Wills are most commonly based on the argument that either the Testator (the person making the Will) was acting under undue influence (or duress) of another person – or they didn’t have mental capacity.
A Will can also be challenged on the basis that it was not signed and witnessed properly. Such challenges are rare, particularly with Wills drawn up by solicitors, although there can be scope for challenge with ‘home made’ or DIY Wills.
The pandemic has led to increased awareness of the need for a Will, however, the lockdown made it more difficult to ensure Wills are properly witnessed. There are reports of people using video calls or social media to have Wills witnessed remotely. Until now, such Wills would not be valid as the Wills Act 1837 requires Wills to be signed in the presence of two or more witnesses in the physical presence of the Testator.
However, the Ministry of Justice recently announced a change to the law to come into force in September which will apply retrospectively to any Wills executed between 31 January 2020 and 31 January 2022. In effect Wills witnessed by video link will be valid, provided additional guidance has been adhered to. This requires the quality of the link to be good enough for witnesses to see and hear everything, the process must be recorded, and the Will physically signed by the witnesses as soon as possible after video witnessing.
It seems inevitable there will be a rise in validity challenges in future and we expect to see more cases where Wills have been drafted at home. Whilst this change in the law will be welcomed by many, it will still be important to ensure the execution complies with the new requirements. Any failures in that process could render the Will subject to a validity challenge.
Not only can arguments be raised about witnessing of homemade Wills, they are much easier to challenge on more common grounds as the procedures that solicitors employ to try to make a Will ‘bullet proof’ will be absent from the process.
If a Will is invalid, it has no effect whatsoever and the estate is either distributed under the terms of their previous Will, or under the rules of intestacy if there is no prior Will. This can have devastating financial consequences for families – but is something that can be easily avoided by seeking professional legal assistance.
Nicola Turner is a senior associate solicitor specialising in inheritance and probate disputes at regional law firm Napthens