The National Will Register

09 May, 2018 14:21:28

Why use a Certainty Will Search when the validity of a Will is in dispute?

by Anna Wonnacott

I am regularly approached by members of the public who have concerns about whether or not a person’s Will is valid.

For a Will to be valid, it must:

Have been made in accordance with section 9 of the Wills Act 1937 (it is in writing, signed by the testator (or by another in their presence and direction) in order to give effect to their Will and that signature is witnessed by two or more persons in their presence who then each sign the Will themselves).
The testator must have had testamentary capacity to make a Will, knew and approved the contents of the Will and was not unduly influenced.

People often raise the question of validity because the terms of the Will they have found do not meet their expectations. This could be because they have not inherited what they had anticipated, or because the Will does not match up with what the testator had told them before they passed away. This can raise suspicion that the Will is invalid, that the testator did not know what they were doing, or that they were perhaps coerced into making a Will which did not record their true intentions.

My initial advice to any client who suspects that a Will is invalid is to file a caveat to prevent probate being granted. This then allows time for the position to be investigated.

The next step is to assess whether or not the client is likely to gain any benefit in carrying out an investigation or pursuing a claim. The process is complicated, stressful and the client needs to be guided and advised by a solicitor specialising in Will disputes. The only way a client benefits from such an action is if they benefit to a greater extent under the intestacy rules (if there is no other Will) or under an older Will which is valid.

If the client does not know if there is a previous Will, it will be important for the client to carry out a Certainty Will Search with Certainty the National Will Register to see whether any previous Wills have been registered. If it has, and it is possible to secure a copy, then the client is in a much better position to assess whether it will be cost-effective to continue to incur legal costs to investigate the validity of the suspicious Will.

Once it is established that there is a benefit, it will be necessary to write to the solicitors who prepared the Will to secure a statement about the circumstances surrounding the drafting and, if possible, secure a copy of the Will file. This will provide insight into whether or not there were circumstances which “excite the suspicion” of the court.

If there is something awry, then a formal letter of claim is sent to the executors and beneficiaries setting out the claim. If settlement cannot be reached through correspondence or mediation, then a claim is likely to be filed with the court so that a determination can be made as to the Will’s validity.

If the Will is held to be invalid, then one of the questions a judge is likely to ask is what efforts have been undertaken to establish whether a previous valid Will is in existence. This will involve producing to the court a copy of the results of any investigations, including the Certainty Will Search.

Anna Wonnacott is a contentious probate specialist in the Wills, trusts and inheritance disputes department at GA Solicitors, and is an editor for Certainty the National Will Register.

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