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| 02 October 2019

Is Your Will Validly Executed?

You may already have a Will or be thinking about getting a Free Will Review. Did you know that if your Will is not executed properly, it will not be valid upon your death? If this is the case, your estate will be distributed in accordance with the rules of intestacy. Intestacy means that your assets are distributed to family and if they cannot be found, pass to the Crown. Crucially, it means your assets are left to people who you may not have otherwise benefitted or have wanted to benefit. It may also mean that somebody you were keen to provide for may go without, such as a partner you never married or a Charity. They may have recourse to the legal system but this would be subject to a successful claim under the Inheritance (Provision for Family and Dependants) Act 1975 and litigation is expensive, time consuming and at times stressful. Therefore, it is imperative that you ensure your Will is validly executed to minimise the risk of challenge and even more importantly having it set aside completely. Attestation clauses also need to be amended to suit an individual’s particular needs, for instance,  if someone cannot read, or physically pick up a pen to sign their Will, the attestation clauses can be adapted accordingly. Along with ensuring that your Will is correctly witnessed, if someone is making a major change to their Will or cutting out someone they financially support/ certain family members, a professional can also provide you with advice on how to mitigate potential challenges and claims  against your estate in the future.  Therefore, it is highly advisable to take independent legal advice on the content and attestation of your Will.

In the recent case of Marley v Rawlings, mirror Wills which were signed by Mr and Mrs Rawlings were found to be invalid. The couple had both signed the Wills, however they did not sign their own Will, but rather each other’s. This error did not emerge until the second death, being that of Mr Rawlings. The Court initially held that Mr Rawlings’ Will could not be admitted to probate as it did not comply with Section 9 of the 1837 Act. This was not only due to that fact that Mr Rawlings had not signed his own Will, but most importantly he had not intended to give effect to the Will which he had signed. Consequently, the estate passed to Mr and Mrs Rawlings' children under the intestacy rules, instead of to their adopted son as stated in their Wills.   The Court of Appeal agreed that it was entirely clear this was a genuine mistake on the part of all concerned, but could not be undone by any “smoke and mirrors” on the part of the court. However, the Supreme Court declared that Mr Rawlings’ will should be rectified and given effect as if he had signed the correct will.
However, despite Marley v Rawlings, the courts will not always rectify a mistake and the importance of adhering to the strict execution and validity criteria found in Section 9 cannot be emphasised enough. In the case above, the mirror Wills were made in 1999 but the mistake remained unnoticed until 2006. Had the error been spotted earlier, new Wills could have been drawn up and the beneficiary of the estate would not have had to endure years of legal battles to allow the testator’s wishes to be acted upon.

If you would like a FREE will review, then please do not hesitate to contact our specialist Wills and Estates Team. During the month of October, we are offering a FREE WILL review at either our Stratford on 020 8049 5888, Southend or Benfleet office on 01702 338338, or our Billericay office on 01277 500123.

Please note this is a free Will review and not an offer for a free Will.

Free Will Southend and Free Will Billericay, Free Will Benfleet, Free Will Stratford

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