How are wills in Sible Hedingham made valid?

Wills in Sible Hedingham and throughout the UK’s validity can be effectively illustrated by a consultation I had with a man named Clive in Sible Hedingham regarding the estate of his late wife, Allie. Immediately after Allie’s funeral her sister, Alex, had apparently told Clive that she had a will (to which she was the executor and sole beneficiary) that Allie had given to her. This was a surprise to Clive as he did not believe Allie had made a will because, due to the nature of the couple’s jobs, they did not own their own home. However, Allie had several investment properties which were in her sole name that she had bought before they were married using a large inheritance from her wealthy grandmother.

In addition, Clive confided to me that a couple of months after he had married Allie he began an affair with a work colleague that he believed he had conducted the affair very discreetly and he was convinced that nobody was aware of the affair. However, several months before she died, Allie told Clive she felt the two of them both working together on the same ship was putting a strain on their relationship and so she got another job on a different ship even though. With this in mind, Clive is worried that his wife’s secret will now also includes revelations about his affair.

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With this in mind, I looked to give Clive the following advice that could be relevant to the administration of other people’s Wills in Sible Hedingham and throughout the rest of the UK –

Generally, any instrument purporting to be testamentary (or to affect a previous testamentary instrument) made by someone over 18 years old of full capacity may be executed in accordance with formal statutory requirements under the Wills Act 1837 (as amended). Such a view has developed regardless of whether they are the outright owner or a trust beneficiary and occurs through the drafting of the will at the time of their death that extends to all testamentary dispositions or gifts someone makes a disposition of their property to take effect after they have died and which is in its own nature ambulatory and revocable during their lifetime. This is an important point because if a Will like Allie’s does not dispose of property it cannot go to probate. At the same time, however, Allie’s Will could go to probate if it purports to dispose of property even if the executor (Alex) were to take probate and then renounce it but the problem was it was not just property being transferred here because it was believed that Allie was also seeking to make revelations about her husband CL’s past.

Moreover, a will must also normally be executed in writing and be signed by the testator (Allie) or someone else in their presence. Therefore, Allie intended their signature to give effect to the document where it is made or acknowledged by the testator in the presence of two or more witnesses present that must also attest and sign the will or acknowledge their signature in the presence of the testator. This is because there is a need to see the testator’s (Allie) act of signing to bring about a valid will for the testator’s wishes or at least see (or have the opportunity to see) the signature and acknowledge it either explicitly or by implication so it would have remained ambulatory and revocable during Allie’s life.

However, if either of the witnesses used were a beneficiary or a spouse of beneficiary then any ‘gift’ to the beneficiary under the will is usually void – although section 1 of the Wills Act 1837 has recognised this rule is not applicable where where are also two other supernumerary witnesses. Moreover, the witnesses need to see one another make their mark to avoid questions later regarding the validity of Allie’s wishes when it comes to its execution under probate by being both ‘physically’ and ‘mentally’ capable. Then, as long as the documents purport to dispose of Allies’s property if the deceased left any property, under section 25 of the Supreme Court Act 1981, or the will contains the appointment of an executor, then the executor (Alex) is to release and distribute the property. In addition, the will must also have been signed by Allie with some mark that she intended to be her signature (so long as it was decipherable and in a permanent form of visual representation), or at their direction with the intention to give effect to their wishes through the document only once so long as all of the pages used had a ‘significant nexus’.

Moreover, an instrument declaring an intention to revoke a will must be executed in the same manner the will itself was executed under section 20 of the Wills Act 1837 and will not be admitted to probate unless it of testamentary character. Any previous will is then considered revoked by a later will expressly revoking all former wills – although no particular words are required. However, whilst an express revocation clause is not essential, if such a clause is inserted in general terms it also operates as a rule that revokes all testamentary instruments previously executed. Clive also needs to be advised such a clause is still not conclusive evidence of an intention to bring about a complete revocation of any previous wills.

However, if it is clear from the tenor of the ‘last will’ the testator did not intend an earlier will to remain in force then it is considered to be revoked. Furthermore, to give effect to her wishes, Allie’s ‘gifts’ must show a certainty of intention, subject matter and objects for them to be legally distributed. Nevertheless, there remains some debate about whether Allies’s will is valid. This is because, whilst there is a certainty of intention, there is a lack of certainty of subject matter and is only really going to benefit Allie herself.

The action Clive can take to prevent the revelations about his private life being made public is somewhat limited in the unlikely event the will would be found to be valid because Clive needs to show Allie had no capacity to make the will. It is also necessary to consider if someone else has exerted an undue influence over Allie so she would then change her will but again the opportunity to argue this would seem to be somewhat limited. However, this is not a disposal of property under the Wills Act 1837 so it would be unable to go to probate otherwise the rest of Allie’s property from her estate goes to her executor, Alexandra. Moreover, Allie’s previous will may still be wholly invalid. The reason for this is because it may not have been properly executed under the Wills Act 1837 with the need for it to be signed in front of two witnesses and, even where Allie’s latest will is considered valid, it must fully and effectively revoke all previous wills.

With this in mind, you are advised to seek assistance from a service provider like Andrew Douglas Wills and Legal Services to give you further advice about any inheritance tax that you may be required to pay at the time of your passing when it comes to your Wills in Sible Hedingham and throughout Essex.

For more information, check out our website at www.andrewdouglaswills.co.uk

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