Important practical and legal issues

Important practical and legal issues when making a last will and testament

Challenges to Wills

Wills are increasingly being contested in the courts, both by family members who feel hard done by and by organisations, such as charities. Such legal challenges can be very distressing for the family members and loved ones left behind.

Important practical and legal issues when making a last will and testament

Cultural changes

We live in a time when family dynamics have altered considerably. The Recession and, subsequent, financial pressures are an added burden, which means that people are now much more aware of their legal rights.

As a result, if people are financially stretched, they are more likely to act on the recognition a potential right to make a claim against a relative’s estate and take legal action, for financial provision or to contest the validity of the Will.

Important practical and legal issues when making a last will and testament

Why might a Will be contested?

A Will might be contested because:

  • A dependant is not sufficiently provided for under the Will
  • It is invalid because it was not properly signed and executed
  • The deceased was not mentally capable of making a Will
  • Ownership of property is in dispute
  • The Will was not properly drafted
Important practical and legal issues when making a last will and testament

Providing for dependants

A person commonly makes a Will to ensure that their loved ones are provided for. If you are providing financial help and care to someone at the date of your death, but you do not provide for them in your Will, they can challenge your Will in the courts, and they are likely to win.

The Inheritance (Provision for Family and Dependants) Act, 1975, provides legal protection for dependants, where someone has died without leaving them provision, or insufficient provision. Typically, dependants who make dependency claims include:

• Spouses and civil partners
• Cohabitants
• Children
• Disabled elderly relatives
• Disabled friends
• Anyone else being financial supported or maintained by the deceased

Important practical and legal issues when making a last will and testament

Providing for dependants (cont)

The Act does not give the green light to adult children to make a claim against a parent simply because they have been disinherited. Unless he or she was financially dependent on the deceased parent, a claim is highly unlikely to succeed.

Where a dependency claim is made, the courts will consider a number of factors, including the claimant’s reasonable expectations, as well as his or her needs and resources. The courts will consider these against what would be reasonable for their maintenance. In making its decision, the Act sets out specific factors the court must take into account, including the obligations of the deceased towards the claimant and the size of the estate.

Where a claim is made by a spouse of civil partner, the courts will look at the more wide-ranging circumstances of the individual case.

It is important to ensure that your Will sufficiently provides for any person who is financially dependent on you, to minimise the risk of potentially expensive and distressing legal action against your estate after your death.

Important practical and legal issues when making a last will and testament

Other legal considerations

Even where a Will is signed and executed in accordance with these legal requirements, there are further legal considerations you should consider:

You must be over 18 or have been (or be) married:

  1. The Will must not have resulted from any duress exerted on the testator. If there is any suggestion of undue influence, the Will could be challenged in the courts following the testator’s death. If you believe you are under pressure to make a Will, seek urgent legal advice
  2. The testator must have ‘capacity’. This means you must be of sound mind when making a Will. If there are any doubts about your mental ability to understand what you are doing during the Will making process, it could be challenged in the courts

Essential legal requirements for your Will

The law is very clear regarding the legal requirements for a Will to be considered legally valid under the Wills Act, 1837.

A Will must be in written form: verbal instructions will not be accepted as an individual’s Last Will and Testament. The specific legal requirements for executing the Will are:

The Will must be in writing and signed by the testator or by some other person in his presence, but by the testator’s direction. The testator’s ‘mark’ may be sufficient, instead of a signature.

  1. It must appear that the testator intended, by his signature, to make the Will take effect by his signature or mark
  2. The signature must be made or acknowledged by the testator in the presence of at least two witnesses, present at the same time
  3. A witness must not be a beneficiary under the Will, nor the spouse (or civil partner) of a beneficiary under the Will
  4. Each witness must either attest and sign the Will or acknowledge the signature in the presence of the testator
Important practical and legal issues when making a last will and testament

Mental capacity

The law is clear that anyone making a Will must have ‘testamentary capacity’. This means he or she must be sufficiently mentally capable of making a Will, as well as knowing what they were doing at the time.

The law states that the testator must:

  1. understand the nature of making a Will and its effects
  2. understand the extent of the assets of which he is disposing
  3. recognise who would inherit the estate if there were no Will and be able to rationally plan for disposing of his estate in the Will

Where the testator’s capacity is at issue in a legal claim before the court, it seems the courts will look very subjectively, and closely, at the particular circumstances of each case. For instance, in a recent case, the court held that even bereavement can alter someone’s state of mind to the extent that a Will made at such a time can be deemed invalid.

The court has said that a Will, “Should only be set aside on the clearest evidence of lack of mental capacity.” Where there is any doubt that a testator is not of sound mind or lacks capacity, is suffering the effects of bereavement or other trauma, such as serious illness, or whose capacity could be doubted in future, therefore, a doctor’s letter should be obtained confirming, or otherwise, that he or she has testamentary capacity to make a Will.

Even where the court deems the testator did have the required mental capacity, there are instances where disputed Wills are being declared invalid on the ground of ‘want of knowledge and approval’. This means that where the court has any suspicion that the testator did not know the contents of the Will, or approved them on executing, it could be declared invalid.

Important practical and legal issues when making a last will and testamentImportant practical and legal issues when making a last will and testament

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