How to contest a will – the importance of the Wills Act 1837

The Wills Act 1837 is 176 years old this year and yet it serves as the foundation for all wills made since, in England and Wales. Strangely it is often ignored in the context of Will dispute claims and yet it provides critical rules that govern whether a Will is actually valid.

When should one consider the Wills Act 1837 in will dispute cases?

Really it is important to always have the Wills Act 1837 in the back of your mind in the context of every will contest or will dispute case. However, there are certain instances when it is more important to consider its rules:
• Where for instance the Will was not made or executed by a Solicitor
• Where there is likely to be a debate over the validity or effect of any previous Wills
• Where there is a question mark over a witness (for instance the witness is a near relation of the beneficiary)
• Where after making the Will, the person who made it, marries and/or divorces but does not make another Will
• Where after making the Will, the person who made it decides to alter part of it but doesn’t do so by means of a new Will or by something called a Codicil
• Where the Will makes a gift to the child or grandchild, but that child or grandchild dies before the person making the Will (what happens to the gift to them following the Will writers death)
It is sometimes helpful to read the Act, notwithstanding its old fashioned words. We paste a link below:
http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/contents
o Where for instance the Will was not made or executed by a Solicitor
You cannot assume that because it was made by a Solicitor, it has been properly signed and witnessed, although it is a good bet that it has. However, we are increasingly coming across Wills that have not been prepared by Solicitors which have not been properly signed and witnessed (we call this “execution”). Further, wills that have been prepared by Solicitors but who have left the “execution” to the client and they have failed to comply with the rules.
The rules on the execution of Wills (their signing and witnessing) are set out in section 9 of the Wills Act 1837. It says:
Signing and attestation of wills
No will shall be valid unless—
(a)it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and
(b)it appears that the testator intended by his signature to give effect to the will; and
(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)each witness either—
(i)attests and signs the will; or
(ii)acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
but no form of attestation shall be necessary.]
These requirements are so vital it is worth a second read if you are engaged contesting a Will, in particular the parts about the “testator” (the person making the will) signing it or acknowledging his signature in the presence of two or more witnesses who are present at the same time and who each sign the Will (to confirm the will writer has actually signed it himself and not some other person). We have had several recent cases involving “home made” wills where the witnesses did not see the will writer signing his or her will. In accordance with section 9 of the Wills Act 1837, those wills are not valid and can be set aside by the court.

Where there is likely to be a debate over the validity or effect of any previous Wills
In a will dispute case, the validity of a previous will (to the will being contested) is often critical. Where for instance the person contesting the will is not a named beneficiary under a previous Will, it might not be possible for him or her to continue to contest a later will, as they will have no interest in the outcome of their claim. Given so, it is important to check if the previous will is actually valid too. As above, it must comply with section 9 of the Wills Act 1837 – signed by the person making the Will in front of two witnesses who also sign it (in general terms). However other matters might invalidate the earlier will meaning, for instance, that the person disputing the later Will is entitled to the estate as the nearest living blood relative of the deceased under the rules of intestacy. A typical example would be where following the making of the previous Will, that will writer married and did not make a new Will. The marriage revokes the subsequent Will by virtue of section 18 of the Wills Act 1837. A subsequent divorce has a similar effect – section 18 A of the Wills Act 1837.
• Where there is a question mark over a witness (for instance the witness is a near relation of the beneficiary or lacks capacity or receives a gift under the terms of the Will)
Again all this is governed by the Wills Act 1837. Section 15 confirms that a gift to a witness is void (or to the wife or husband of the witness). Section 14, that a Will is not made invalid because of the “incompetency” (ie inadequacy) of one of the witnesses. Where after making the Will, the person who made it, divorces but does not make another Will

We have already dealt with this above. Marriage revokes a previous Will and divorce has a similar effect.

• Where after making the Will, the person who made it decides to alter part of it but doesn’t do so by means of a new Will or by something called a Codicil Section 21 of the Wills Act 1837 applies. An alteration to a Will is not effective unless it is signed and witnessed (like the will itself – pursuant to section 9). In other words, the person making the will and altering it subsequently, must sign it in terms which confirm the alteration to be his (or hers) and in front of two witnesses, as if he had prepared an entirely new Will. Once again then, in a will contest claim where it appears there have been some alterations to the Will, those will not be valid unless it can be shown the person making the Will has “executed” them by resigning the Will in front of two witnesses who also sign it.

• Where the Will makes a gift to the child or grandchild, but that child or grandchild dies before the person making the Will (what happens to the gift to them following the Will writers death)

This is interesting!! It could be useful in a situation where again, a person is disputing a will but has not been named as the beneficiary of the deceased under a previous valid Will. Again, this could cause a massive problem given unless the person disputing a Will has an interest in the outcome of his or her claim (by virtue of a previous valid will or by the rules of intestacy) he or she cannot continue to pursue it. Section 33 of the Wills Act 1837 can provide a solution. By this section where the Will makes a gift to the child of the deceased (or grandchild) but that child dies before the person who made the will, leaving children (grandchildren of the deceased or great grandchildren), notwithstanding there is no specific gift to the grandchildren (or great grandchildren), they will receive the gift intended for the child.
By all means contact us for assistance in relation to your own dispute:
www.willclaim.com
Or call direct: 0203 322 5103