"A closer look at lack of valid execution as a trigger to contest a will"
It is always painful when a loved one dies, and times are made even more troublesome when their Will does not say what you expected it to.
One of the grounds for disputing a Will is that it has not been properly signed (also called “execution”). As a Will is an important legal document which often disposes of large amounts of money, there are strict rules in place to ensure that they are properly signed and witnessed.
The rules include:-
1. The person making the Will (called “the testator”) must sign the Will in the presence of both witnesses;
2. The witnesses must then sign the Will, in the presence of both the testator and the other witness;
3. Both witnesses must be at least 18 years of age;
4. Witnesses cannot be blind or have significant lack of sight;
5. Witnesses cannot lack mental capacity; and
6. The Will must be dated.
There are a number of other rules as well, such as that a Will should not be witnessed by a beneficiary or their spouse/civil partner. Whilst this does not make the Will invalid, it makes any gift to that beneficiary invalid.
Sometimes, it will be obvious that the Will has not been properly executed. If there is any doubt as to the execution of the Will, then it may be possible to investigate matters by asking questions of the solicitor who prepared the Will, or by obtaining statements from the witnesses. These investigations will determine if there is cause for concern.
If a Will has not been properly executed, then it will be invalid. The deceased’s estate will then pass under their previous Will or, if they did not have a previous will, under the rules on intestacy.
If you wish to contest a will on the grounds of lack of execution, or for any other reason, it is important to act promptly. For more information, please contact Graeme Stenson