Statistics indicate that in 2012 there were 252 contested Wills in the UK, and in 2015 the figure had reached 325. Disputed Wills are definitely on the increase.
Wills can be contested for a number of reasons:
- lack of testamentary capacity,
- lack of valid execution,
- lack of knowledge and approval, and
- undue influence.
Could the compulsory registration of Wills as they have in Dubai reduce the number of contested Will claims being made in the UK?
The notion of formally registering a Will is being spearheaded by the Dubai International Financial Centre (DIFC), who launched a Wills and Probate Registry in May 2015. Any non-Muslim with assets in Dubai can now execute a Will in English under the jurisdiction of the DIFC and its courts - with the key condition that the Will must be registered with the DIFC.
The registration process is very stringent. At the appointment with the DIFC, the person registering the will first has an interview with an official to ensure the individual understands the terms of the will and the unsigned Will is thoroughly checked. The Will is then signed in the presence of a DIFC official who acts as one of the two witnesses required. The individual is then provided with a hard-copy of their signed Will. The original Will remains under DIFC’s custody and is turned into an electronic document which is given a unique file number.
One important feature is that beneficiaries of the Will cannot attend the meeting. As a consequence of the registration process, if this were adopted in the UK, the measures taken would undoubtedly reduce the risk of future challenges to the Will on grounds such as undue influence. The DIFC officials will also ensure that any Will is properly executed and whilst they do not carry out a formal mental capacity test, the fact that they go through the Will independently with the Will maker reduces the risk of future claims being made based on lack of mental capacity, want of knowledge and approval, and undue influence. The registration process will no doubt mean that there is a higher threshold to overcome if there is to be any future claim bearing in mind the rigorous process taken to execute the Will.
The Law Society endorses the use of Certainty, the National Will Register, which is not compulsory. Circa 6.3 million Wills are currently registered with Certainty. Whilst the system is welcome as it ensures a Will can be located upon death provided it has been registered, it does not reduce the risk of a Will being contested or protect against the invalid execution of the Will.
Other jurisdictions such as France have a central Wills register and Wills can be made through a notary which reduces the risk that the Will may be contested. However, the use of a notary to execute a Will is not a compulsory process.
Dubai is the stand out jurisdiction in formally promoting the compulsory registration of a Will with a stringent registration process. Since its launch in May 2015, The DIFC Wills and Probate Registry has registered over 1,000 Wills. With UK Wills challenges on the increase, any system that can reduce uncertainty, cost and delay surely has to be a good thing?