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Tony Wickenden: Forget Downton Abbey, things to look out for when will writing

I appreciate that I am way behind the journalistic curve by referencing Downton.

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The Sunday night Downton fest and the preceding (at the time of writing) X Factor competition (boot camp) represents a juxtaposition that may, at first sight, seem strange and then, on reflection, be appreciated as being somewhat aligned – at least in their generation of the viewing public’s dedication and approbation.

One has affected voices, histrionics, desperation and tears; and the other is the X Factor.  

I appreciate that I am way behind the journalistic curve by referencing Downton though. Those far quicker off the mark than me were all over aspects of this latest “season” by using Matthew Crawley’s lack of a Will to (understandably) launch into a strongly reasoned argument for the benefits of having one, a valid Will that is.

But it turns out there was one – a Will – although not “a Will as such” according to Lord Grantham. So with the football fan in me coming to the fore “too soon, you started writing too soon!” you know how it goes – well any of you who go to football that is…especially Citizens.

So it turns out that Matthew did leave a written (and presumably) witnessed document that was sufficient to satisfy the requirements for a valid Will.  A grander examination of what “Matty boy” said in the Will, how it was expressed, signed and witnessed did not take place in the programme. That could have got a bit dull but perhaps at the end the programme announcer could have announced that it qualified for an hour’s structured CPD – subject to there being clearly stated “learning outcomes” expressed at the beginning of the programme. But I digress.

At this point I thought it might be worth reminding you what the requirements for a valid Will are in case any of you have been inspired by Downton to put your affairs in order.

So what makes a Will a valid Will – so to speak? There are four main requirements.

A will must be in writing unless it is a privileged Will, but no special form of words is required. It can be hand-written or typed. A privileged Will is exempt from complying with the Wills Act and can only be made by a member of the armed forces engaged in actual military service or in conditions similar to active military service. One wonders if this rule could be stretched to incorporate stewards at a Tottenham v Arsenal/Chelsea/West Ham game.

The testator or testatrix must sign the Will. The Court will accept as a signature whatever mark was intended to be their signature, and this can include a cross or other mark. Normally the signature is made at the end of the Will but if the Will is signed elsewhere it can still be valid.

The testator or testatrix must intend to give effect to the Will by signing it.  

Testamentary intent involves the testator or testatrix having subjectively intended that the document in question constitute his or her Will at the time it was executed. Ordinarily, the opening recital, e.g. “I, Matthew Crawley, do hereby declare this instrument to be my last Will and testament …” will usually suffice. This could, if desired, be written on a piece of paper that can conveniently drop from the book in which you place it when, after your death, someone looks through your things. You could also sew it inside your favourite teddy bear or, perhaps, deposit it for safekeeping and make it clear to all where it is. But that would be too easy and non- dramatic for a TV representation of your post-death drama.

The signature of the testator or testatrix must be witnessed by at least two witnesses. They must both be present at the time when the testator or testatrix signs the Will. The witnesses must acknowledge the signature in the presence of the testator or testatrix though not necessarily in the presence of each other.

The position of the witnesses’ signatures does not matter.  But if the signatures are not on the same paper as the Will they must be on a paper physically connected with it. Witnesses should not be able to benefit under the Will.

In England, Wales and Northern Ireland, the person making a Will must have reached the age of 18, although there is an exception to this where the Will is a privileged Will. In Scotland, a child over the age of 12 can make a Will.

For a Will to be valid it must be shown that the testator or testatrix was of a “sound disposing mind” when the Will was made.

This means that the testator or testatrix must

  • be aware that the wishes expressed in the Will will take effect on death
  • understand the way the estate will be distributed amongst beneficiaries
  • have a recollection of the property that is being disposed of
  • understand the nature and extent of the claims on them
  • know and approve of the contents of the Will at the time it was executed

In law there is a rebuttable presumption that the testator or testatrix knew and approved of the contents unless:

  • the testator or testatrix was unable to speak, had a visual impairment or was unable to read (the Court then requires evidence that the testator/testatrix knew and approved of the contents)
  • suspicious circumstances arise

In Scotland, in general a person who is unable to understand the nature and effect of what they are doing lacks the legal capacity to make a valid Will.  A Will executed by someone while in this state is void and has no effect.  But a person who lacks the capacity to make a Will under the Mental Health Act 1983 might be able to make a valid Will during a lucid interval.

A Will might be challenged if it was executed whilst the testator or testatrix:

  • was so affected by alcohol or drugs that they did not understand their actions; or
  • was forced to make the Will under duress

A Will might also be challenged if there were other circumstances that meant the testator/testatrix was influenced in some way when making the Will.

Tony Wickenden is joint managing director of Technical Connection

Through Techlink Professional, you can access CII and IFP-accredited CPD, a full and up-to-date technical library, technical updates, business generation ideas and, through our additional ASKservice, case-related technical support. Techlink Communicator delivers content for regular client and professional adviser communication. Go to www.techlink.co.uk and click the Free Trial link. Go to www.technicalconnection.co.uk for more details on our services or call 020 7405 1600.

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