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A signed will: what can go wrong?

A solicitor recently challenged her father’s will in court (and won) on the grounds that it had not been executed properly. The will had left everything to her brothers.

The Daily Mail article reads:

“Jarnail Singh, who is also solicitor, had defended his father's will. He argued that in line with Sikh tradition, the eldest sons assume the main role and daughters are treated as part of their husband's family and provided for through large wedding dowries.”

However this argument is irrelevant if the will has not been executed properly:

“In his verdict, Judge Mark Cawson QC said there was 'the strongest evidence' that the legal formalities had not been complied with.

Central to the judge's ruling was the evidence of one witness to the will, Mr Singh's 78-year-old next-door neighbour, Maurice Grantham.

Mr Grantham was 'adamant' that he and the other witness were not present at the same time when Mr Singh signed.”

>Why? Well…

I have spoken before about the legal provisions which allow dependants to challenge a will on the basis it has not made reasonable provision for them. That act allows certain classes of people – essentially those who have relied upon or might be expected to rely upon the deceased during their lifetime – to obtain a court order to amend the will. The Law Commission states “Whether or not the deceased left a valid will, certain family members and dependants may apply to court for reasonable financial provision from the estate, under the Inheritance (Provision for Family and Dependants) Act 1975”.

The law in this area could be clearer but an artificially clear cut example would be:

A and B are an unmarried couple who make mirror (not mutual) wills; A and B split up but A finds true love with C but C doesn’t believe in marriage. A and C have a disabled child, D. A dies, not having amended his will, which leaves everything to B.*

The law has been criticised by some for interfering with a testator’s (the person making the will) choice about who should get his or her property. I doubt anyone would disagree that my example above requires some sort of ‘correction’; however there can be personal reasons why, for example, someone might leave their estate to the next door neighbour who looked after them for ten years, despite a job and three kids, rather than the unemployed daughter who visited every Christmas to pick up her presents. Why should the state interfere?

But the act cannot be relied upon simply because some beneficiaries believe that the division of the estate is not ‘fair’ or does not comply with what the testator would have wanted. Dividing a sizeable estate equally between siblings who all appear to be professionals is unlikely to cause any of them to receive a share which is not ‘reasonable’. Therefore, if the will is not valid the testator’s wishes will be frustrated if it is challenged.

The case is another example of a pitfall for executors when dealing with an estate. Just because a will is clear on who should get what and why, and is signed by the testator, there is still the possibility that a beneficiary or dependant could challenge the will (and any actions of the executors).

*An interesting report on people’s attitude to inheritance law is here.

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The choices when someone dies