‘Some people think that it is unnecessary and costly to use a solicitor to draft their will, relying instead on off-the-shelf or do-it-yourself methods,’ says Frances Woods, Partner and Head of Dispute Resolution with QualitySolicitors Parkinson Wright. ‘However, there are many potential pitfalls when it comes to drawing up a will, and the cost of getting it wrong can be high indeed.’
Frances explains the options if you have been surprised by the contents of a will and believe that there may have been a mistake.
Problems with DIY wills
If a testator decides against using a solicitor to draw up their will, mistakes are much more likely to creep in, which might lead to the will being declared invalid. If this happens possessions would be distributed to family members according to the strict intestacy rules, which may not reflect original intentions.
Even if validly drafted, the will may not be clear enough to avoid disputes among potential beneficiaries after the testator dies, which could lead to time-consuming and costly litigation, and less money left to distribute to beneficiaries. In addition, an unregulated will would not be covered by liability insurance so there will be no safety net if things go wrong.
What makes a will legally valid?
According to the provisions of the Wills Act 1837 and UK case law, to be legally valid a will must be made by a person (the testator) who has ‘testamentary capacity’ and is aged 18 or over. It must also be signed by the testator in front of two independent witnesses aged 18 or over (who are not beneficiaries or related to beneficiaries); the witnesses must in turn sign the will in the testator’s presence.
A person will be judged to have testamentary capacity if, at the time the will is drafted, they are capable of understanding:
- what is included in their estate;
- that the will is made voluntarily and not under duress;
- that their assets will be bestowed on their beneficiaries; and
- the fall-out that may be caused by leaving or not leaving assets to certain potential beneficiaries.
Why might a will be found to be invalid?
There are many reasons that a will might be found to be invalid, or a gift under it might fail, some of the most common being:
- the testator was not of sound mind when the will was drafted;
- they were pressured (either physically, mentally, or emotionally) to draft the will in a certain way by someone else;
- it was not signed properly (either by the testator or the witnesses);
- it has been altered or forged;
- it was confusing or unclear;
- the testator does not have enough assets to satisfy the gifts bequeathed under the will (for example, if changes in the stock market impacted the value of their assets); or
- the solicitor who drew up the will was negligent and did not draft it according to the testator’s wishes; failed to complete the will quickly enough and the testator died before the will was signed; or gave inadequate legal advice meaning the will was open to challenge.
What are your options if you believe there is a mistake in a will?
Technically, anyone can challenge a will if they feel it is invalid, but it will usually be someone close to the testator who would have expected to inherit and either did not or did not get what they were expecting.
There are three main actions you can take if you think that a will contains mistakes:
- asking a court to rectify it;
- suing the person or firm who drafted the will for professional negligence; or
- contesting the will.
Rectification
If an error was made in the drafting of the will such that it does not reflect the testator’s wishes – for example, the wrong beneficiary was named because of a typo or because the will drafter misunderstood the testator’s intentions – it is possible to make an application to the court for rectification under section 20 of the Administration of Justice Act 1982.
The court will need to see evidence that the testator’s instructions were not followed. This could involve a perusal of the will drafter’s notes and any other documents that might shed light on the testator’s true intentions, as well as witness statements taken from the will drafter and the testator’s family and friends.
The time limits for bringing a rectification claim are tight: an application must be made within six months of the probate being granted, unless the court agrees to extend the deadline, which it might do if the person asking for rectification did not know of the death or the provisions of the will in this time.
Professional negligence claim
A court will not grant a rectification application if an error in law is made in the drafting of a will. In addition, if financial loss is suffered as a result of a mistake or the giving of bad advice by the wills professional, a professional negligence claim is always an option.
If, for example, the will was negligently executed (the signing and witnessing of the will) because of poor supervision by the wills professional; if the will drafter missed out a beneficiary; or gave incorrect advice leading to costly and unnecessary tax implications; or if there was an unreasonable delay in preparing the will; meaning it was not signed before the testator died; a claim may be made for compensation against the negligent professional.
Contesting the will
There are a number of options open to a would-be beneficiary who wants to contest a will.
If they were a dependant who could expect to receive something under the will but did not, they could bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 for reasonable financial provision within six months of probate being granted.
Alternatively, if they have been promised something by the testator during the testator’s lifetime which did not materialise in the will, a claim for proprietary estoppel can be made, and the court may order that they are given what they were promised. The claimant must be able to show they were promised something they did not get and they suffered detriment as a result of relying on the promise.
If they want to challenge a will on the grounds of fraud, incorrect execution, duress, or lack of testamentary capacity, they might lodge a caveat if probate has not yet been granted. This essentially prevents a grant of probate being obtained until the dispute is settled. If the challenge is successful, the will may be declared invalid, and the previous valid will takes its place; if there was no previous will, the rules of intestacy will apply. It is possible to contest a will after probate is granted but this will be much more complicated, time-consuming and costly.
How we can help
If you believe something is wrong with someone’s will, you should consult a solicitor as soon as possible. They can advise you on the possible grounds for a challenge and the best course of action in the circumstances.
For further information, please contact Frances Woods or a member of the dispute resolution team on 01905 721600 or via email worcester@parkinsonwright.co.uk.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.