A more unusual way of challenging the validity of a will and the unfortunate effect this may have
A more unusual way of challenging the validity of a will and the unfortunate effect this may have
In 2017 The Law Commission launched a consultation into reform of the process surrounding our laws relating to wills which dates back to 1837 as amended by various case law since then. The law surrounding wills is unnecessarily complex. More importantly it is an area of law where clients often feel they can save costs and go at it alone, but because of the complex laws involved, this can lead to a whole range of unforeseen consequences.
In this article we look at circumstances where signing the will can lead to a whole manner of unforeseen complications.
During the pandemic there was a temporary amendment to the Wills Act which allowed the witnessing of wills to take place via video conferencing or other visual transmission. The changes did not extend to electronic signing of the will and this is just one of the areas the Law Commission have now elected to review along with the automatic revocation of a will on marriage.
It seems unfortunate that from time to time there may be a situation arising which calls into question whether a will is valid owing to the manner in which the signature process was carried out. This can lead to an enormous amount of cost and delay in processing the administration of the estate. It is often no one’s fault as such and often it would go unnoticed and the will would be admitted to probate on the assumption that the process of signing it had been undertaken correctly. Indeed there is a presumption that if the will looks to all intents and purposes as if it has been signed and witnessed correctly, it will be valid. There are probably many wills which have been incorrectly signed yet have successfully been admitted to probate and no one is ever the wiser.
So how and why does this arise in certain situations and what is the effect?
The first thing to note is that a will may have been prepared and signed many years ago. It is often difficult to recall the circumstances in which it was signed and the witnesses may no longer be around.
No one will give thought to whether it was signed correctly, if on the face of it the person making the will has signed it, and there are two witnesses to the will who have also signed. If those signatures are all present, there is a presumption that it was signed correctly, unless of course it comes to light that for example one of those three was not present when the others signed. If that is established then it calls into question whether the signature process was undertaken in accordance with the strict law on this point.
The law in summary provides that the person making the will must either sign it in the presence of his witnesses, or at the very least must acknowledge that his signature on the will is in the presence of those witnesses. Those same witnesses must then sign in the presence of the person making the will, and in the presence of each other, or at the very least acknowledge their signature in the presence of each other.
Obviously in order to ensure you do it correctly and do not fall into a situation where someone can potentially argue that the will was not properly signed, perhaps the best option is to sign in the presence of a solicitor. As solicitors we know the strict requirements and can ensure those requirements are accommodated. However with remote meetings now prevalent it is not always possible to meet with your solicitor or indeed convenient to do so. You may have made a will without legal advice in which case that is not necessarily an option. Many solicitors do send out detailed instruction sheets with a step by step guide on how to navigate the process set down by the law. Unfortunately it is all too easy not to read it thoroughly or to just not consider the process to be terribly important, but a challenge to the validity of a will can be a costly headache for your beneficiaries after your death, and it happens perhaps more than you would think.
So how does it become known that the will was not properly signed?
Sometimes it can be sheer bad luck. For example if you instruct a solicitor to deal with the administration of your relative’s estate and someone says in passing that although they were a witness, they were not present when the will was signed, it starts alarm bells ringing. That then requires further investigation and a view must be taken as to whether the will was validly signed or not. If not, that solicitor cannot advise you to admit the will to probate.
On other occasions it can be a disgruntled relative who feels they should have been left something and weren’t. If they want to try and challenge the validity of the will and there are no other options available to them, they may well contact the witnesses to see if the process was undertaken properly – if there is even a slight deviation from the process as outlined by the law, it gives them the opportunity to challenge. This is a more opportunistic approach to challenging a will – that disgruntled person may well know that the deceased never intended to leave him anything but he has essentially found a way to circumvent those wishes.
So what happens in the event the will is challenged in this way?
The process outlined by Section 9 of the Will Act is very strict and quite specific. On the one hand this makes it much easier to fall foul of the actual requirements but on the other it does mean that there are some stringent requirements to ensure that what is being presented as the deceased person’s last will is indeed that – and that it was his intention that this should be his last will. The process has already been amended to make it a little less specific but it remains a very strict requirement.
If challenged, it invariably means that the person challenging has the right to bring a claim that the will is invalid. If there was no earlier will then the estate will pass according to the rules of intestacy which apply when a person dies without making a will. That could mean that a beneficiary who has no entitlement under those rules gets nothing from the estate – a particular instance might be a long term partner who under these rules would not inherit at all. That means he would have to bring a claim under the Inheritance ( Provision for Family & Dependants) Act 1975 asking the court to vary those rules and make provision for him. This results in two sets of legal proceedings, the first to establish whether the will was valid and assuming it is not, the second to allow the then disinherited party to make an application for provision. There is no doubt that the costs of two sets of proceedings such as these would be an extremely expensive option running into tens of thousand of pounds in legal fees.
If the deceased had made a previous will, then it is likely the estate will pass according to that earlier will. Presumably the deceased changed his will because he wanted to amend the provision he was making for his various beneficiaries. If that is the case the incorrect signature process could well mean that his changes, which are changes he wanted to make, simply do not take effect.
If the will is challenged owing to the signature process being ineffective, the courts are forced to make a decision on whether the actions taken at the time of signing the will are sufficient to comply with the strict requirements of the Wills Act. There are recent cases where the courts have had to consider such circumstances. In the case of Cooper-v-Chapman which was decided by the court in 2022, the court had to look at the detail of the actual signature process. In this case the will maker had signed the will prior to the arrival of the witnesses. The question the judge had to answer was whether he had actually acknowledged his signature to the witnesses. Whilst it may be straightforward if it was a simple case of either he said “this is my signature” or he didn’t, but of course there are a number of ways in which one can acknowledge the signature. Indeed it would be unusual for an individual who is not a lawyer to actually say those words. In this case the court considered that a hand gesture was sufficient, the will maker having gestured to the witnesses that the wills were ready for them to sign. One of the difficulties with this case was that the witnesses were called to give evidence, and on cross examination at trial their evidence was inconsistent, which after a lapse of several years can often be the case. The judge decided that he must look at the whole matter holistically and he reached a decision that the will had been signed in accordance with the strict requirements and was therefore valid.
In another case Sangha-v-Sangha which was decided by the Court of Appeal earlier this year, again the court were called upon to assess whether the will had been validly signed. In this case there were other issues and as it happens, the question of the signature became somewhat academic. However the court were addressed on the issue and it was considered. In this case, the will maker signed in the presence of his first witness and the first witness signed in the presence of the will maker. At this time the second witness was not present – he was called into the room and the will maker asked the second witness to sign. In doing so, the court agreed that the will maker was acknowledging his own signature to the second witness. However, the next question was whether the first witness also had to acknowledge his signature to the second witness. Again the court found that the will had been validly signed.
As can be seen from the above, this type of case requires a detailed examination of what transpired at the time the will was signed. The consequences can be harsh and it does mean that the wishes of the deceased no longer take effect. More importantly, the outcome is difficult to judge not least because it relies heavily on the evidence of the witnesses. Often they are the only people who were there and it may well have been many years ago hence their recollection may be flawed, which often means that those witnesses are inconsistent when challenged in cross examination.
If you think there are circumstances where a will may be invalid for this reason, our Contentious Probate team can assist. If you require help with the process of making a will and ensuring you get the process right to avoid the costs of potential litigation at a later date, then please contact our wills, trust and probate team.
One only hopes that the current consultation process being undertaken will provide clarity on this issue and will recognise that electronic signing of wills would save time and cost – avoiding the majority of these cases where the process seems to have gone wrong at the time the will was signed.