Preparing wills can be stressful. Once completed, people are satisfied that their estate will be distributed in accordance with their wishes upon their death. However, problems can arise if the will has not been properly executed. This can sometimes happen if a person has undertaken a DIY will and not followed will formalities. Solicitors and professional will writers can make errors causing the will to be invalid.
If wills are not properly executed this can lead to problems when the executors try to obtain a grant of probate to administer the estate. Moreover, if a will is invalid the testator’s wishes will often not be managed in the way they wanted meaning intended beneficiaries miss out.
Formal Validity of Wills
Section 9 of the Wills Act 1837 provides that a will is valid if:-
- It is in writing and it is signed by the testator (or by another person in his presence at his direction);
- The testator intended to give effect to the will by signing it;
- The testator signs the will in the presence of two or more witnesses present at the same time;
- Each witness attests and signs the will or acknowledges his signature in the testator’s presence.
Common problems with wills
1. Invalid execution of the will
Mistakes are often made when wills are sent to the testator by a solicitor for signing and the testator is not vigilant in ensuring compliance with section 9 of the Wills Act. This can include circumstances where witnesses to the will have not witnessed the testator signing the will or acknowledged his signature in his presence.
The witnesses must not be beneficiaries (or the spouse/civil partner of the beneficiary) to the will as this renders the will void.
2. A will becomes invalid upon marriage
If a testator makes a will whilst single and then subsequently marries, the marriage causes the will to be void. A clause about the anticipated marriage should be included in the will stating the testator intends for the will to remain effective after the marriage. Otherwise a new will must be made following the marriage.
3. A gift in the will becomes ineffective and can lead to partial intestacy due to:-
- the death of a beneficiary and an absence of a substitute beneficiary;
- the gift is no longer available; or
- the gift is not specific enough to identify.
If a gift fails, it will form part of the deceased’s estate and be distributed according to intestacy rules. The rules specify how much of the estate should go to whom based on an order of relatives. This is often contrary to what the testator wanted.
4. A solicitor or will writer fails to accurately draft a clause or fails to check if legal formalities have been followed
There have been many instances where solicitors have failed to draft a will in accordance with a testator’s wishes. This could include drafting an ambiguous clause or misunderstanding the testator’s intention. Clearly, any misconstruction of the testator’s intention will have adverse consequences upon death. Possible remedies are discussed below.
5. Jurisdiction problems
An English will applies to moveable assets in England and also abroad and applies to immoveable assets (real estate) in England.
A clause can be included in an English will to deal with real estate abroad, but it is recommended that a will in the foreign jurisdiction is executed as foreign jurisdictions might not recognise the English will.
If a foreign jurisdiction fails to recognise the English will, the immovable assets might fall under local forced heirship succession rules. For example, under Italian and French law a minimum share of the deceased’s estate must be distributed to certain family members.
Forced succession rules may be avoided using the European law: Brussels IV. Brussels IV provides that succession of an estate is governed by the law of the member state in which the deceased was habitually resident at the time of his death unless the deceased was more closely connected with another state at the time of death.
The UK, Ireland and Denmark are not signatories to Brussels IV. It is, however, possible for English nationals to elect English law to apply to their international estate provided that it can be shown they were more closely connected with England at the time of their death. Brussels IV will apply to those who pass away on or after 17 August 2015.
An application can be made to Court to have an invalid will rectified due to a (1) clerical error or (2) failure to understand the testator’s instructions. A clerical error can be made by a solicitor, clerk, typist or the testator when he or she adds something by mistake or omits something he or she intended to insert. Rectification can be permitted even where it will have the effect of converting an ineffective contract into an effective one. The court will consider the testator’s intention when considering if the will shall be rectified and extrinsic evidence may be permitted for this purpose.
The Supreme Court in Marley v Rawlings (2012) used rectification to give effect to invalid wills. A solicitor had drafted identical wills for Mr and Mrs Rawlings, save for their names and gender references. They left their estates to each other and the default beneficiary was Mr Marley. The solicitor provided the Rawlings with each other’s will and they each signed the wrong will; this was identified after they had both died. The Rawlings’ son argued that the wills were invalid and the estates should not pass to Mr Marley – they should, upon intestacy rules, pass to the son. The Supreme Court held that despite the Rawlings signing the wrong wills, there was evidence that they intended their wills to have effect and that the default beneficiary was Mr Marley and not their son.
It is often the case when rectifying a will that was negligently prepared by a solicitor, that the solicitor will then indemnify the beneficiary for the rectification costs.
Professional Negligence Claim
If rectification is not suitable, a possible option is to bring a professional negligence claim against the solicitor that negligently prepared the will. Historically, such claims could only be brought by the client who suffered a loss as the solicitor owed a duty of care to their client.
This created a problem in probate cases where the client (the testator) had passed away and therefore no claim could be brought for professional negligence when the negligence came to light. However, the House of Lords in White v Jones (1995) held that a beneficiary of a will has a right to damages against the solicitor whose negligence has caused that beneficiary to suffer loss. The duty of care owed by the solicitor to the testator is extended to the beneficiary.
The duty extends to circumstances when a solicitor sends a will to a client for signature. In this case, the solicitor has a duty to examine the returned will to see whether it appears to be properly executed. In Humblestone v Martin Tolhurst Partnership (2004) the High Court held that a solicitor potentially owed a duty to the testator and beneficiary to ensure that a will had been properly executed. In this case, the solicitor sent a will to the testator and, upon receipt of the will, failed to notice that the testator had not signed it.