Challenges to the validity of wills: beware of “homemade Wills”

29 May 2012

Challenges to the validity of Wills are becoming more frequent, particularly in relation to homemade Wills and Wills not drafted by professionals. The most common challenges centre around allegations that the testator lacked testamentary capacity; was being placed under undue influence; or fraud.  However, recent cases have also shown claimants will increasingly seek declarations that a Will is invalid on the grounds of “want of knowledge and approval”.

In research undertaken by the Legal Services Board, they note that 20% of Wills drafted contain errors and obviously these errors can lead to the increased possibility of litigation.  Currently, anyone can establish themselves as a Will writing company and they are not subject to any regulation.  The Legal Services Board has recommended to Parliament that Will writing should be a reserved activity which may only be carried out by regulated legal professionals.  Solicitors are already regulated by the Solicitors’ Regulation Authority.  The Government may consider legislation following the conclusion of a consultation period which is open until 16 July 2012.

Whilst the new regulatory rules, if they come into force, will no doubt reduce the level of litigation, it is likely that there will be many more cases in the coming years arising from Wills which have already been drafted. In particular, there are likely to be cases of incapacity, undue influence, forged wills, want of knowledge and approval, and Wills not being properly executed. The risk of having a Will challenged is more likely if it has been made without the benefit of professional assistance.

If you have the need to discuss a disputed Will, wish to have your existing Will reviewed, or indeed to have your own Will professionally drafted, please do not hesitate to contact either Ryan Mowat (Dispute Resolution) or the Private Client team at Kingsley Napley.

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