Even when you have written your Will there is no guarantee that your wishes will be fulfilled unless you also take action to reduce the likelihood of successful challenges to your Will.
Someone can challenge your Will for one or more of the following reasons:
The Will has not been “properly executed”;
You did not have the required “mental capacity”;
You did not fully understand and approve the content of the Will;
You were “unduly influenced” when preparing the Will;
The Will is a forgery or is based on fraudulent information given to the person making the Will;
There is a later valid Will;
The Will does not truly reflect your wishes, due to a clerical error or failure by the person drawing it up to understand your true intentions;
The Will does not make adequate provision for a spouse, former spouse, child, or other person who was financially dependent on you.
In most cases it is down to the person challenging your Will to show that one of the above reasons applies. However, if the challenge is that you lacked capacity or that you did not fully understand and approve the Will it is down to the Executor to prove that this is not the case. If the Executor cannot prove this, the challenge will be accepted by the Court.
We always ensure there is legal evidence with the Will to make it far less likely anyone would try to challenge the Will.
Example 12 - Witnesses Did Not See the Will Being Signed
Geoffrey decided to save costs by using a “do-it-yourself” Will. He wanted to leave everything to his wife, Shirley.
After he had written and signed his Will, Geoffrey remembered there were supposed to be witnesses, so he took the Will next door and asked his neighbours to sign as witnesses.
When Geoffrey died, his adult children were annoyed that they had not been left anything and asked a solicitor to help them challenge the Will.
The first thing the solicitor did was to check the Will had been properly executed, so he contacted the witnesses and asked them to confirm they had been present when the Will was signed. The witnesses said they did not see Geoffrey sign the Will.
This was enough evidence to show that the Will had not been properly executed, and it was ruled as not valid. As there was no earlier Will, the Rules of Intestacy applied. Shirley inherited what she was entitled to under the Rules of Intestacy, and the rest passed to the children, even though this was clearly not what Geoffrey had intended.
Example 13 - Lack of Capacity
Edith was a widow with two adult sons, Dylan and Martin, who were not financially dependent on her. Dylan spent a lot of time with Edith when she fell ill, but Martin had never once bothered to visit her. Edith decided to pass all her wealth to Dylan.
When Edith died, and Martin realised he was getting nothing, he asked his solicitor to challenge the Will. The solicitor sent a “Larke v Nugus” request to the person who drew up Edith’s Will, asking them to detail all the circumstances in which the Will was prepared.
Edith was 79 and unfortunately in poor health when she instructed her Will-writer. Given her age and her state of health, the Will-writer should have taken appropriate actions to satisfy himself that she fully understood what she was doing, and he should have made contemporaneous notes of this and ensured those notes were held on file. He had neglected to do this. In those circumstances the Court ruled that on the balance of probabilities Edith did not have the mental capacity required in order to provide instructions for a Will.
In an earlier Will, Edith had left her estate equally to Dylan and Martin. As the Court had ruled her latest Will was not valid due to lack of capacity, her earlier Will prevailed. Martin therefore received half of Edith’s estate even though this was not her wish and was not what she had stated in her final Will.
These examples show just how important it is that the person helping you prepare your Will takes all the right steps and makes sure all the necessary evidence is kept with the Will just in case there is a challenge.