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Will it do what you want?

A client recently showed me a copy of his Will. He had purchased it online from a Will writing company. Unfortunately no one checked it had been executed properly.

The client, who is elderly and is separated but not divorced, intended in his Will to divide his estate three ways, between his two sons and his grandson. Unfortunately one of the witnesses to the Will was the wife of one of the sons.

Under s.15 of the Wills Act 1837 if a Will is witnessed by a beneficiary under a Will, or their spouse (or civil partner) then the gift to that beneficiary fails, although the rest of the Will remains valid.

If the client had died with this Will in place the outcome would clearly not be what the client wanted. As the mistake was spotted it could be corrected, but what would have happened had it not been picked up?

One option would be for a Deed of Variation to be entered into. If the beneficiaries under a Will wish to change the way in which the estate is to be divided then they can vary the distribution, as long as it is done within two years of the testator’s death. All the beneficiaries must be of age and must consent to the variation. In this case, as the grandson is a minor (though he may be of age by the time my client dies) then the consent of the Court would be needed and the Court would have to be satisfied that the proposed changes were in the interest of the minor. But this is a costly exercise even if everyone agrees. In addition there have been indications recently from the Labour Party that they may abolish Deeds of Variation if they win the election, and so this may not provide a solution in the future.

Whilst it is vital to have a Will drawn up by a professional the lesson to be drawn from this case is that it is also sensible either to execute the Will in the presence of a professional, such as at your solicitor’s office, or else to send the Will to your solicitor after execution. A solicitor should be able to spot any mistakes so that they can be rectified before it is too late.