When is a Will not a will?

Mark - Colour WEB

The law recognises that we can leave our assets to whomsoever we wish. There are cases, however, where a last wish might not be as effective as was thought.

First, a Will must be valid; some rules must have been followed. It must have been executed (signed by the maker) in a particular way. The maker must have been at least 18 years of age. The Will must be in writing and have been signed by the maker in the presence of two independent witnesses (who must not be intended to benefit under the Will or be married to someone intended so to benefit).

Home made Wills are much more likely to fail, wholly or in part, on this basis than those made professionally.

Secondly the maker must have had the necessary capacity to make a Will. Broadly, there are two ways in which the capacity might have been affected:-

a) mental health

b) by undue influence

Mental Health

The maker must have had the necessary capacity (for which there is a longstanding test) only at the time that the Will was made, even if he/she lapses into periods when patently capacity is lacking. Each case depends upon its facts. Advice should be sought on the particular case.If someone suffers mental health problems, it is prudent to get a medical expert to confirm that the person has the necessary capacity at the time that the Will is drawn. This is likely to save substantial legal costs later.

Undue Influence/Duress

Simply bringing pressure to bear upon the maker is not enough to render the Will invalid. There must be conduct sufficient to amount to coercion. It is possible for someone to have been pressurised, subjected to appeals, pity, or moral claims, but for the Will still to be valid.

Proving sufficient influence or duress to amount to coercion is difficult. A challenge on this basis should only be made where the evidence is compelling.

Challenging a Will is expensive. Think very carefully before doing so. The answer is often not what you might expect. Seek proper advice from a specialist.

For further advice please contact Mark Pittaway, Director on 0121 2273873 or e-mail mpittaway@thursfields.co.uk

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