Is your Will valid?

by Richard Tymkiw on July 12, 2018
Richard-Tymkiw

Is your Will Valid?  Making a Will is an opportunity for you to determine how your assets are distributed after your death.   If you die without one (intestate), they are distributed in accordance with laws that take no account of your wishes (known as the intestacy rules).  Broadly speaking, under the intestacy rules your spouse/civil partner and children are first in line to inherit.  If no spouse/civil partner or children survive you, then your parents, siblings, nieces and nephews may inherit.

If you make a Will but it is not valid in the eyes of the law, your estate will be shared out in accordance with a previous valid Will if you had one.  If not, the intestacy rules apply.  Therefore, to be certain of having the last say in how your assets are distributed, you need to ensure your Will is valid.

The case of Payne & Another v Payne [2018] EWCA Civ 985 illustrates the difficulties family members may face when the validity of a Will is queried.  The deceased, John Henry Payne, had made two Wills.  The first, made in 1998, left the majority of his assets to his second wife.  The second, made in 2012, left the majority of his assets to his son and grandson.

After Mr Payne’s death, his second wife claimed that the 1998 Will was valid, whereas the 2012 Will was not as it did not meet all the criteria for a legally binding Will.  There followed a number of court hearings, undoubtedly stressful for the family members involved.

Mr Payne’s son and grandson sought a declaration from the court that the 2012 Will was legally binding, but the judge decided that neither the 2012 nor the 1998 Will were valid.  Accordingly, Mr Payne’s assets should be distributed under the intestacy rules, as if he had not made a Will.  The court noted that the witnesses to the 1998 Will had given their names, occupations and addresses in block capitals but neither had actually “signed” the Will, in the sense of applying a unique or personal mark.

Mr Payne’s second wife appealed to the Court of Appeal, which upheld the 1998 Will.  It decided that there was no requirement for witnesses to a Will to “sign” it by applying a unique or personal mark.  It is sufficient for them simply to write their name, as long as they do so with the intention of validating the Will.

Clearly, it is important to ensure your Will is valid, so as to spare your family and close friends the sort of difficulties encountered by Mr Payne’s second wife, son and grandson.  This is a summary of the criteria you need to meet:

  • You must be aged 18 or over when you make your Will.
  • You must make it voluntarily, and not have succumbed to pressure from others to make a Will or to include certain terms in it.
  • You must be of sound mind when you make your Will, capable of taking your own decisions and understanding their effect. In particular, you must be fully aware of:
    • the extent of your assets and everything you own;
    • the nature of the document, and that your beneficiaries will receive your assets;
    • the people who might inherit, and the implications of including or excluding certain people as beneficiaries.

Also, you must understand your actions and not be influenced into making decisions.

  • If you have a serious illness or a diagnosis of dementia, you can still make a Will as long as you have the mental capacity required for it to be valid. If there is any doubt about this now, or if there is a risk that after your death, people might doubt whether you had mental capacity, it is advisable to obtain a statement from your doctor certifying that you understand what you are signing.
  • The Will must be in writing.
  • You must sign it in the presence of two or more witnesses who are aged 18 or over. Neither they nor their spouse or civil partner should stand to benefit under your Will.  If you leave assets to a witness or their spouse/civil partner, your Will is still valid but they are not entitled to their inheritance.
  • It is not sufficient to sign your Will by yourself and later ask witnesses to confirm that it looks like your signature. The witnesses must be with you when you sign.
  • If you are unable to sign, for example by reason of disability, a third party can sign on your behalf, as long as you are in the room at the time and direct them to sign it.
  • After you have signed your Will, your witnesses must sign it in your presence. As above, the Court of Appeal in 2018 clarified that as long as a witness writes their name on the Will, with the intention of validating it, this will suffice.  There is no requirement for them to put their “signature” as such (i.e. a mark personal or unique to them).  However, a signature is advisable as it leaves less scope for future doubt as to who witnessed the Will.
  • Similarly, there is no requirement to date your Will but it is advisable to do so.

 Once you have made your Will, you must not amend it.  If you do, the amendments will be ignored and your assets will be distributed in accordance with the original version.

You can make minor changes by making a codicil to your Will.  This is a separate document and, like your Will, must be signed in the presence of two or more independent witnesses (as above).  However, the witnesses need not be the same people as witnessed your original Will.

If you want to make substantial changes, you should make a new Will.  It is important that this includes a paragraph stating that you revoke all previous Wills & codicils, so they are no longer legally valid.

In limited circumstances, even if your Will is valid, it can be challenged after your death if someone (usually a family member or dependent) believes it does not adequately provide for them.   However, this is subject to rules as to who may apply, in what circumstances and how long after your death.  For most people, making a valid Will is a way of ensuring that their assets are distributed in accordance with their wishes.

If you have questions about the matters raised here, we are of course happy to give detailed advice tailored to your circumstances, on request.