Many practitioners in England and Wales have seen an influx of clients looking to update their Wills in light of the COVID-19 pandemic. Although many will be pleased that Wills are finally getting the attention they deserve, practitioners must take care to ensure that the Wills they prepare and assist in executing are valid. Otherwise, the practitioner may find themselves in the middle of a contentious probate matter, and being liable for professional negligence.
General requirements for a valid Will
The Wills Act 1837 requires a Will must be in writing and signed by the testator (or someone in the testator’s presence and at their direction), in the presence of two or more witnesses present at the same time, with either the witness signing the Will or acknowledging the signature in the testator’s presence. The testator must also appear to intend that their signature will affect the Will.
Execution of Wills
The Law Society regularly update their guidance, and as at today (20 April 2020), they advise a witness must be physically present, not just available via video messaging. They explain that a practitioner can supervise where they are not witnessing a Will.
The SRA’s guidance is to check whether the client has any neighbours able to witness the Will. It must be remembered that someone benefiting under the Will must not witness the Will, and so it is likely that family members or others within the household are not able to assist in this request.
Capacity of clients
The practitioner must consider whether the client has sufficient capacity to execute their Will, as according to the Banks v Goodfellow guidance. As the practitioner is likely to see new clients, it is perhaps more important than ever to ensure that the testator is aware of the approximate size of their estate, the obligations they owe to family or dependants, and understand what the Will says and how any mechanisms within it work. If there is any doubt about the capacity of the client, we suggest that the golden rule is adopted (obtaining a doctor’s declaration of capacity).
Our contentious probate team specialises in all aspects of contentious probate and is consistently ranked in the top tier of The Legal 500. The team is headed up by Robert Weston, who is listed in The Legal 500 as a “leading individual” and was the instructing solicitor for the successful party in the landmark judgment of Walker v Badmin. Robert, together with Suzanne Lee and Andrew Chandler are all full members of The Association of Contentious Trust and Probate Specialists (ACTAPS) and represent clients both nationwide and abroad in both bringing and defending claims.
If you have a contentious probate matter which you would like to discuss with a specialist solicitor with a view to instructing mfg Solicitors LLP, please visit https://www.mfgsolicitors.com/site/services-for-me/contentious-probate/ for further information and contact details.
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