When seeking to challenge the validity of a Will, the first consideration must be whether the Will has been properly executed. This can be considered by reviewing a copy of the Will and potentially contacting the witnesses, to ensure they fulfilled their roles as witnesses in the proper manner.
In England and Wales, the requirements of a valid Will are detailed in Section 9 of the Wills Act 1937.
In order for a Will to be valid, it must be:
- In writing;
- Signed by the testator;
- The testator must intend to give effect to the Will by signing the document;
- The testator’s signature must be signed and acknowledged in the presence of two witnesses; and
- The two witnesses must also sign the Will at the same time.
As valid execution requires the presence and signature of two witnesses, contacting said witnesses can often be the most effective way of confirming valid execution, following review of the basic requirements above.
If the witnesses confirm that they were both present when the testator signed the Will, and that they both then signed the document, then it can be reasonably concluded that valid execution of the Will is present.
If it is concluded that the Will was been properly executed, there is a presumption that the Will is valid.
Should it be concluded that the Will has not been executed in a valid manner, it must be considered whether an element of professional negligence is present in that the drafting solicitor has failed to fulfil their role or more commonly, the witnesses were not present when the testator signed the Will and in fact signed at a later date or not in the presence of the testator, therein deeming the execution to be invalid.
If you have concerns that a Will has not been executed in a valid manner, you must seek advice at the earliest opportunity.
Within our blog “Challenging a Will – Practical Considerations” we also consider other grounds for challenging a Will.
Should you wish to speak with us about your own matter, please get in touch with us on 0161 696 6178 and we will be happy to speak with you.
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