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Tony Wickenden: Make sure you follow the right will procedures

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As I have mentioned in past articles, to ensure the validity of a will it is absolutely essential to follow the correct procedures. Incorrect or doubtful execution of a will has led to numerous court cases at, usually, great cost to all concerned.

There is also a rule that anyone seeking to rely on a will that they have prepared and from which they benefit must provide clear proof that the testator knew and approved of its contents.

In the case of Fuller -v- Strum [2002] the Court of Appeal reiterated that where a beneficiary had prepared a will at the testator’s request this created an element of suspicion which that beneficiary had to dispel by showing that, on the balance of probabilities, the will freely expressed the testator’s wishes.

A 2004 case involving Court action by the children of a deceased solicitor against his widow [Sherington v Sherington] resulted in the High Court declaring the deceased’s will, under which the widow was the sole beneficiary, to have been invalidly executed.

This meant that the intestacy provisions came into effect under which the widow was only entitled to a small part of the estate while the children inherited most of it. However, this decision was later overturned by the Court of Appeal.

This case illustrates the crucial importance of following the correct procedure to ensure the validity of a will. It also shows that apparently even lawyers dealing with such matters on a daily basis are not immune from getting things wrong. The costs of this litigation in the High Court alone were reported to be in excess of £150,000 which was increased still further with the Court of Appeal hearing.

A will may be revoked by the provisions of a subsequent Will/codicil, by destruction, by marriage or, since 5 December 2005, by registration of a civil partnership. 

Generally speaking, a new valid will will automatically revoke any previous will, although it is recommended that words clearly stating this are in fact incorporated in the new will. It is also recommended that any old document is destroyed. If a former will is not destroyed and, for whatever reason, the later will is held to be invalid, then the former will would still be operative. 

A will is revoked by destruction by the testator or at the testator’s instructions and in their presence. 

Accidental destruction of a will does not revoke it if it is possible to reproduce it (for example by putting together any torn up pieces where the will is torn up by mistake). 

Under English law marriage has the effect of revoking a will unless the will itself is made in contemplation of a forthcoming marriage.

In such a case, the will must state that it is made in contemplation of marriage to a particular person, who must be named, and it must state that the intention of the testator is that the will shall not be revoked.

Divorce does not automatically revoke all the provisions of a will. However, the effect of divorce is that any appointment of the former spouse as an executor/executrix will be of no effect and any gift in the will to the former spouse will also be ineffective.

The legal position is that after divorce or annulment a spouse is to be treated as having died on the date of divorce or annulment (section 18A Wills Act 1837 as amended by the Law Reform (Succession) Act 1995). 

Next week I plan to look in a little more detail at what the content of a typical will looks like and consider some of the important practical benefits of making a 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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