Invalid Will

There are a number of legal reasons why a will made may be invalid. This article deals briefly with the situation where it cannot be proved that the will was properly executed.

Legal requirements

It is Section 9 of the Wills Act 1837 that sets out the legal requirements for how a will should be executed. This includes that a will must be in writing and signed in a particular manner by the testator (person making the will) and their witnesses.

Case law has held that only the strongest of evidence will rebut the presumption that a will was properly executed.

There have certainly been some interesting cases over the years:-

In Marley v Rawlings in 2012 mirror wills were prepared for a husband and wife to execute. However, their solicitor unfortunately gave them the wrong will to execute. The Supreme Court held even though the wrong spouse had signed the will it could be dealt with under Section 20(1)(a) of the Administration of Justice Act 1982 on the basis that it was a clerical error and it was clear what each of the testators had intended.

But in Barrett v Ben and others in the same year the Court of Appeal said that the testator’s sister signing the will made it invalid because there was not sufficient evidence that the sister had signed it at the direction of the testator.

There have been cases that have come before the courts where witnesses have not signed the will but as long as they saw the testator sign the will and have provided their personal details they could, after the testator’s death, be able to give evidence that they had witnessed the will signing. Therefore, such wills have been valid.

Why is it important?

Whether a will is valid or not can make a huge difference to how the deceased’s estate will be administered. If there was only ever the invalidly executed will prepared by the deceased then it will be treated as if he/she died intestate (with no will) and therefore the intestacy rules will dictate who the beneficiaries are. If one or more previous wills were made during the testator’s lifetime then if the last will prior to the invalid will can be proved then the estate will be administered in accordance with that. Therefore, there can be every benefit sometimes in a beneficiary that has recently been disinherited arguing that the last will of the deceased is invalid.

What do you do if the will is invalid?

You will want to stop the invalid will being used to obtain the grant of probate and the estate being administered in accordance with its terms. Applying for a caveat at the Probate Registry is the first step. However, you will need legal advice as to whether you have good grounds to be challenging the validity of the will.

How can you find out more about the circumstances in which a will was made and/or executed?

If a will was professionally prepared by a will writer or solicitor they are under a legal obligation, further to a case of Larke v Nugus and Law Society Guidance to provide details about the will making after the testator’s death to anyone likely to have an interest in the deceased’s estate.

For legal advice on this area contact us – whether you are the executor, beneficiary or a family member.