There are too many formalities involved in making a will
In order to create a valid will you have to comply with formalities contained in the Wills Act 1837. The Government wants to encourage us to make such wills in the interest of certainty (and as it makes inheritance tax more transparent so that the HMRC know what they can expect!). If they want to encourage us to make wills then they should loosen the formalities involved as currently, there are too many formalities involved in making a will.
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Executors must prove the will was made when the deceased was sound of mind
If a will is contested, it is down to those seeking to enforce the will to prove that the person who made the will was sound of mind when the will was made. This is something that people have to bear in mind when making a will. If their executors cannot prove that they were sound of mind when giving the instructions of the will, then the will cannot be enforced and will not be legally binding. The elements of this soundness of mind are : "a soundness of mind, memory and understanding as to the nature, extent and moral claims under their will instructions [[Banks v Goodfellow]]. This means that they have to know what it is they are giving away and have regard to all those who seem to have a moral claim to the property, ie children, spouse.
Proving this may be difficult, especially when people tend to make wills later in life and their soundness of memory may be contested.
This formality is entirely necessary. If we did not have this rule then we could have vulnerable elderly adults making wills under the influence of another, or making such wills not knowing they are doing so.
If an elderly person is making a will, a responsible solicitor will ensure that the person is mentally sound and will witness to that effect[[http://www.publicguardian.gov.uk/docs/mca-code-practice-0509.pdf]]. Such a witnessing will count against any claims that the deceased was not mentally capable to make a will.
the rules on witnessing are very strict
In order for a will to be valid there must be two witnesses. These witnesses must each see the testator sign the will. They must then each sign the will in the presence of the testator[[s.9(d) Wills Act 1837]]. If one of the witnesses did not see the testator signing the will, then the whole will becomes invalid and the testators intention will not be given effect to. This is an overly restrictive formality, one witness should be enough.
All that is required is that two people see the testator sign the will. They need not know the contents of the will and they need not sign the will attesting the signature of the testator in front of each other. This can be done by any two people found in the solicitor's office!
a witness will lose all entitlemnts under the will
A person who witnesses a will cannot claim any beneficial interest from that will. Therefore you should not have your spouse or your children witness your will, you should have two people who have no interest in how the estate will be distributed. This even includes the witnesses spouse. Therefore, if you get your daughters husband to witness a will, even though he does not get anything under the will and therefore is not a beneficiary, the daughter will lose her beneficial entitlement under the will[[http://www.legalaid.tas.gov.au/Factsheets/Wills.html]]. Unless proper legal advice is sought, peopl will not know of these rules and a testator may die believing their family will be catered for in the way they wish, when in fact they are not; all due to these strict formal requirements.
alterations made before a will is executed need to be attested
If someone writes an amendment to a will on will, such amendment needs to be attested by a witness in order for the amendment to be valid. If it is not attested, the amendment will be presumed to have occurred after the will was executed and therefore the amendment will not be valid.
There are only a few formalities for remedying this situation. In order for the amendment to take effect upon the death of the testator, an affidavit of the witness will have to be signed. This is a document which is sworn on oath in the presence of a solicitor. Alternatively, the witness could initial the amendment before they sign to witness to testator signing the will. This is a minor formality in order to remedy the problem of alterations to wills before the will's execution.
all we really need to show is clear intention
A will is nothing more than a written document stating how a person intends their property to be distributed upon their death. The only formalities that exist are only there to ensure that such intentions are put into effect. For this reason, intention is a requirement of a will but it is presumed to exist. If a will is rational, it is presumed that the person intended to make that will as a will. To say otherwise, someone contesting the will would have to prove that intention was not there. For example they would have to prove that coercion were involved, that someone forced them to make the will.
What about posthumous sudden acquisition of property or income?
Suppose the deceased won the lottery (bought the ticket before dying) and never mentioned it in the will. Should his relatives or friends get the money? How can anyone include improbable gains in their will?
A will is exercisable only under certain formal conditions. The point on the right states that clear intention has to be established but at the same time says that it is assumed unless contested; this feels a bit contradictory.
seamen and soldier exceptions
Despite the fact that wills are normally required to be in writing and signed by the testator[[S9(a) Wills Act 1837]] , the law allows for privileged wills[[S11 Wills Act 1837]]. These are wills made by soldiers or seaman. They can make their wills via oral declarations. This ensures that their intentions are put into effect even if they do not have time to formally create a will. Here then, the law does not impose too many formalities.
Whilst the statute may imply that there are few formalities involved in such privileged wills, the courts do not construe the law lightly. They take each and every word and analyse it. They do so because to have a will on the basis of a conversation, whereby only one party to that conversation is still alive is open to potential abuse. We need only look at the recent case of Re Estate of Ashley Edward Servoz-Gavin [[http://www.lawgazette.co.uk/in-practice/probate-privileged-wills-and-not-so-helpful-help]] to see all the hurdles that have to be over come to put such a will into effect. The person who claims a will was made orally needs to prove that the words were intended to create a will and were not merely conversational, and they also need to prove that the person was in the course of British Military action. Some cases, including this one, have gone into assessing whether or not this has to be done on British ships or navels!
the requirement of a signiture can be varied
The requirement of a signature [[s.9(b) Wills Act 1837]] may seem like a simple formality but it is not for the bland or the illiterate. The courts have therefore interpreted the term 'signature widely' and have deemed it to include a thumb print and a signature by another person made on the direction of the person whose will is being formalised. If any doubt arises on the signature of the testator, then external evidence can be brought to prove the testators intention that the will was to be valid via an affidavit (a witness statement sworn on oath) by the witnesses or the solicitor who executed the will[[http://www.inbrief.co.uk/estate-law/formalities-making-a-will-s9-wills-act.htm]].
This is a problem because somebody else can sign your will.
This can create motives for greedy murderers who know they can sign inheritance to themselves.
Then what about if a person is incapacitated; who writes/signs his/her will?
Should a person with intense old-age dementia or in a coma be rendered invalid; in which case how are his/her wishes determined.
There is too much leeway for exploiting the diseased and old.
a document can be incorporated into a will without the need for formalities
If a will makes reference to a document, that document can validly be incorporated as part of the testamentary trust document and therefore binding even if that document itself has not been signed or witnessed as per the Wills Act 1837. This means that if the testator wanted the contents of his will to remain a secret he could keep a hidden document and specify that document in his duly attested and executed will and the secret document would become part of that will.
This does not really obviate the need to comply with the main formalities of the Wills Act [[ s.9 Wills Act 1837]]. The document must be clearly referenced in the will. It must specify the document to it's exact description. That document must already be in existence and be referred to in the will as already existing. That means that you cannot formalise a will and then create such a document afterward. You save yourself no time and have no leeway by virtue of this provision. The formalities of creating a will in this way are still very restrictive.
codicils can amend, add or revoke a provision in th will
If you have made a will and you wish to change one or two of the provisions in it then you can execute a codicil in order to amend, add or revoke provisions in the will. This saves people the time and effort of executing the whole will again. Without having to execute a whole new will, the codicil has the effect of republishing the old will [[http://www.clickdocs.co.uk/alterations.htm]].
Whilst it may confirm an old will without the need to republish a new will, there are still many formalities involved with the execution of a valid codicil.
The codicil must explicitly refer to the will it amends, adds to or revokes and it should do so by referencing the date of the will it amends.
In addition, a codicil has to go through the same formalities as an actual will. It needs two witnesses and needs to be signed accordingly.[[http://www.inbrief.co.uk/estate-law/codicils-and-revoking-wills.htm]] The availability of a codicil then does not make the process of will making less formulaic.
alterations can be made on the will after the will's execution
Alterations can be made to a will after it has already been executed by being signed and witnessed as being signed. [[s21 Wills Act 1837]]. The alteration can be signed by the testator followed by a witness in the margin and this will be deemed as a valid alteration.
Here the alteration needs to be witnessed by two people, just as the will itself is. If this condition is failed there are three possible consequences.
1) if the original wording of the will, that was duly executed before the alteration, is still apparent then this amount is the amount the beneficiary will receive. So if a testator has in their will "John to get 500 pounds" but then crosses out the 500 and writes 1000 above it, John will get 500 as per the validly executed will minus the invalid amendment.
2) if the original wording is not apparent, so in the above example of John 500 was scribbled over so that it is no longer readable then the will reads "John to get ..."; John will get nothing despite the fact that a figure is written above the scribble.
3) If the testator intended to revoke the gift in the original and replace it with a new gift, the probate office will deem it that the revocation of the original gift was conditional on the substitution being valid. If such a substitution was not valid, the person entitled will get the gift which the original will gave to them.
External evidence would be needed in order to prove the original wording if it was not apparent. Otherwise, the original gift is also invalid.
marriage will automatically revoke a will, no formalities required
If a person has made a will and subsequently marries or enters into a civil partnership[[Schedule 4 Civil Partnership Act 2004]], the will is declared revoked[[s18(1) Wills Act 1837]]. This means that any property passing under that will is invalid. This is different if at the time of making the will, that marriage was in contemplation. So if during engagement, a will is made, then the will is deemed to still be valid after the marriage [[s18(3) Wills Act 1837]].
So people have to make new wills once they marry. This is horrible; now everybody has top write a pre-nup (prenuptial agreement).??
upon divorce, the testator's spouse is presumed dead
Whilst this may sound harsh, in order to give effect to people's presumed intentions, upon divorce any gift to that spouse is deemed lapsed[[s18A(b) Wills Act 1837]]. If the ex-spouse was appointed as executor, such appointment is deemed invalid[[s18A(a) Wills Act 1837]]. For the purposes of executing a will, the spouse is treated as dead. This means that people will not pass property to their spouse in the event of divorce should they have forgotten to amend their will.
In order for the 'divorce' to be valid, the court needs to recognise the ending of the relationship via a decree absolute [[s18A(1) Wills Act 1837 as amended by Part II Family Law Act 1986]]. This in itself is subject to strict formalities being complied with.
What do you think?