The importance of proving capacity when making a Will
You may have read or heard of a will being challenged and this may well put you off from making your own will.
It certainly cannot be denied that wills are challenged but is this a good enough reason for not making your own wishes known.
It is important to realise and understand that their are just a few reasons why a will can be challenged and even if the expense of this does not deter someone from doing so, the time it can take and the emotional strain of the procedure as well as the chances of success may well do so.
The person making the will (the testator) must be in a position where they understand the contents of the will and the value of their assets, the nature of the relationships of the beneficiaries and any members of the family they may have excluded. For a successful challenge there must be some evidence that the individual did not have full “testamentary capacity”.
*The following article told the story of an elderly grandmother who rewrote her Will two years before her death, leaving her Estate to her friends and leaving nothing to her family as she claimed they had not paid her any attention in her later years.
The elderly woman has been deemed to have been grief stricken as she suffered two losses; that of her husband and her twin brother just before she rewrote her Will. Her Will was then challenged by members of her family who claimed that she was not capable of making a Will and she was not fully aware of the conditions of said Will. The Court therefore made the decision to overrule the Will, as they deemed her to have not had mental capacity when she made the Will and therefore instead of her friends inheriting her £500,000 estate as was stated in her Last Will and Testament her assets will be distributed according to the Laws of Intestacy and will go to her next of kin.
This highlights the importance, when making a Will, to ensure that it cannot be challenged by any person after death, that mental capacity must be proven. If there is any doubt then the best advice is to have a letter from a GP to state that the person, who is making the Will, has the capacity and sound mind to do so.
Even with such a letter from a GP, a Will can still be challenged, and it is not guaranteed that said letter would therefore ensure the wishes of the Will were carried out.
Making a Will sooner rather than later is the best advice when thinking about who you would want to inherit from your estate as it is less likely that your Will could be disputed according to a lack of capacity.
For a successful challenge of a will, it must be shown that the testator did something contary to his or her true desires. It is not neccessary to show that the testator (person making the will) was of unsound mind to prove undue influence. It is the main reason why a beneficiary cannot be a witness to the signing of a will, if they did it would invalidate the will and could also be interpreted as coercion. Undue influence is a difficult thing to prove and depends on the court’s judgement and even then can be appealed.
Improper execution of a Will
Setting up the will correctly is imperative.A will must be signed by two or three witnesses. A witness cannot be a beneficiary. A spouse of a beneficiary cannot be a witness nor anybody else who may directly benefit from the proceeds of the will. If you have prepared your own will and not dated correctly or have made more than one will and they are undated. Codicils and amendments to existing wills if not dated witnessed and signed can be subject to challenge.
Falsifying documents, forged signatures even amendments to wills made on the basis of misinformation given by a benefiaciary.
Provision for dependents not made
A dependent child or anyone treated as a “child of the family” may have a claim providing they were still dependent at the time of the deceased’s death.
A Cohabitee who has lived with the deceased for two years immediately prior to the death. Current or former spouses, current of former civil partners, in limited circumstances may also have a claim.
The importance of making a will cannot be stressed enough. Equally, preparing your will correctly is a must. Never let the uncertainty put you off from making what could be the most important document you sign.
*Will writing is not regulated by the Financial Conduct Authority
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