What are the conditions for a Will to be valid?
For a Will to be valid and enforceable it must meet the following conditions:
- be made by a person who is 18 or older
- be made by a person who has capacity, is fully aware that they are making a Will and of the property they are seeking to give away in the Will
- be in writing
- include the testator’s wishes without any outside pressure
- be signed by the person making the Will in the presence of two witnesses
- be signed by those two witnesses, in the presence of the person making the Will.
Can a Will still be witnessed remotely?
To ensure that Wills could still be made without breaking social distancing guidelines, the government introduced the video witnessing of Wills. This allowed individuals to use platforms such as Zoom, Skype or Facetime for remote witnessing of Wills. However, Lord Bellamy, the Parliamentary Under-Secretary of State for Justice, recently declared an end to this temporary legislation, citing that the unique circumstances that warranted this legal change no longer existed, and so neither did the special measure.
He raised the huge increase in proceedings disputing the validity of Wills as one of the main catalysts. The Financial Times recently reported that claims had increased by over 34% in the last five years and more than 140% in the past decade. It was also reported that 390 probate disputes were brought before the High Court over the first nine months of 2023; more than double the cases over the same period in 2016. The real increase is thought to be significantly more as most probate disputes do not reach the Court room. By way of illustration, 9,500 caveats were entered to block the administration of estates in England and Wales during the period of 2022-23 – the highest number in the last five years.
Increase in Will disputes since the Covid pandemic?
This is all occurring amongst an ever-growing and technologically-dependant society, where platforms like Zoom and Facetime are increasingly being used in everyday life. The remote witnessing of Wills, amongst many other reasons, is undoubtedly causing a surge in Will disputes given that the remote witnessing of a Will can cause an increased risk of fraud, undue influence and/or lack of due execution.
When acting remotely, a witness is less likely to spot signs of concern that may later cause a Will to be invalid. For example, is the major beneficiary standing just off camera forcing the testator to make the Will? Will any mental illness, such as dementia, be as obvious? There are also logistical challenges getting three people (the testator and two witnesses) to sign the same document and for each of them to witness the other signing the same, which may lead to an error by those parties causing the Will to be held invalid.
Importance of having a valid Will to protect your Estate
It is important that a testator ensures their Will is valid and sets out their wishes clearly and accurately. If they fail to do so, their Estate may pass pursuant to the terms of an earlier Will or, if they do not have an earlier valid Will, the Intestacy Rules. The Intestacy Rules are a framework which sets out who may inherit an Estate where the person dies without leaving a Will. An Estate passing pursuant to an outdated Will, or the Intestacy Rules, may cause an Estate to fall into the wrong hands.
By way of an example, John remained married to Jane without children at the date of his death. John made a Will seeking to pass his Estate to his nieces and nephews. John’s Will was found to be invalid as it was not signed in the presence of two witnesses. John had no earlier Will and so his Estate was administered as per the Intestacy Rules. This meant that Jane inherited his whole Estate (John having no children) and John’s family receiving nothing.
Many people believe that, on their death without a Will, their Estate will automatically pass to their spouse. This is not the case. The Intestacy Rules provide that the first £322,000 (£270,000 if the Deceased died between February 2020 and July 2023) shall pass to the spouse with the remainder being split equally between the spouse and the children. This can cause all sorts of administrative issues where the children are minors as the funds will have to be put into trust.
Importance of using a solicitor to draft your Will
Whilst an online or DIY Will may seem great value, it is not worth a penny if it does not achieve what the testator wants it to do, and that is without mentioning the significant legal fees that may be incurred by those disputing or defending the Will. A professionally drafted and witnessed Will is much harder to challenge as the solicitor should have kept detailed notes of their interactions with the testator and be able to provide evidence of their recollections. Furthermore, there is a presumption of validity where the Will appears valid on its face, and has been drafted by a solicitor.
If you are concerned that your Will or the Will of a loved one is invalid, or have any questions about any of the issues covered in this update, then please contact one of our Contentious Probate solicitors today, by email or call on +44 (0)3333 231 580
