What to expect
In principle, every adult may make a will leaving his property how he wishes. He may disinherit his spouse and children and leave everything to the local animal shelter or the next-door neighbour, simply out of spite, and the law will uphold his decision.
Except, in reality, it is not quite so cut and dried. Such a will may give rise to suspicion and to a number of possible questions, for example:
- Did the deceased have the necessary ‘testamentary capacity’ to make the will?
- Did he understand and approve its contents?
- Was the will prepared by, or with the heavy involvement of, someone who benefits under it?
- Indeed, was it signed by the deceased at all?
- If so, did he make the will willingly or was he coerced into making one which did not provide for his true wishes?
On the other hand, many believe that a will must be overturned:
- If it is considered to be “unfair”
- If the will’s provisions are not what others in the same position would have done
- If the deceased had a mental health condition at the time the will was made
- If the deceased was old, deaf, blind or suffering from dementia
This is wrong. In reality, the law will uphold a will unless it was made in breach of the most basic formalities, for example, the witnesses were not present when the will was signed by the deceased, or he was not present when the witnesses later signed it.
Alternatively, if the will resulted from coercion, a fundamental misunderstanding as to its effects or contents, or because the deceased lacked the necessary capacity when he made it.
In our experience, the vast majority of challenges to wills involve an allegation that the deceased lacked ‘testamentary capacity’.
Making a will
To have capacity to make a valid Will, a person must:
• Know what a will is and its effect
• Have a reasonable understanding of the extent of his estate
• Recognise and know the identity of those closest to him whom it might be thought he would wish to benefit (even if, in fact, he does not so wish)
• Not suffer from mental delusions which may poison his affections for such people and bring about a will other than the one he would have made otherwise
What to do next
The first rule is don’t delay. There may be initial steps that can be taken to preserve the status quo, prevent a Grant of Probate being issued before investigations have been completed or stop assets being distributed if a Grant has already been issued. The sooner we are involved, the easier things should be and it will also cost less too.
For further advice on any of the above or to arrange a no obligation meeting, contact John Melville-Smith on 020 7725 8027.