Challenges to the validity of wills are getting more common. Two recent cases of challenges to wills in the courts illustrate that (Casim Haq v Irvine and Scott v Reeves) and are the catalyst for this note offering some pointers as to what counts as a valid will and what counts as an invalid will.
Two aspects to “validity”
There are two aspects to a will being valid: (1) formal validity and (2) essential validity.
(1) Formal validity
For formal validity an individual’s will must be in written form and signed by that individual (“the Testator”) at the end of the last page. Strictly, that is all that is required for a will to be formally valid.
Generally, however, in practice, the signature of the Testator is also witnessed and the witness also signs and is identified by their name and address. That makes things easier following the death of the Testator in that there is then no need to present evidence to the Sheriff Court to show that the signature on the will is indeed, in fact, that of the Testator. If the will is duly witnessed such evidence is not needed: the will is presumed as a matter of fact to have been signed by the Testator. It is what is called “self-proving”.
It is of course a requirement for formal validity that the will is in fact signed at the end by the Testator. Unsurprisingly, if the Testator’s purported signature is a forgery the will is invalid. But, as has been said by the court: “cogent and sufficiently powerful evidence is required to satisfy the court that [a] forgery case has been established”.
(2) Essential validity
The matter of essential validity has more moving parts. The main ones are as follows and often overlap:
The Testator’s intention
(i) First, a will must show “concluded testamentary intent”. In other words, it must be clear that the document (a) is intended to take effect after the Testator’s death, (b) disposes of their property and (c) identifies the beneficiaries of that property. But formality is not a requirement. As was said by the judge in an old case back in 1885: “I do not think it matters how inelegant, or how imperfect grammatically a testator’s language may be, if it can fairly be construed to mean that he bequeaths certain sums of money to certain individuals, sufficiently [identified] in the writing itself”.
Testamentary capacity
(ii) Secondly, the maker of a will must have “testamentary capacity”. That is to say the Testator must be aged 12 or over and have testamentary capacity in terms of the judge-made common law where the rule is that the Testator must have the ability to understand the nature and effect of what they are doing. Such ability is enough. So, for example, it would still be possible for someone to have testamentary capacity even if they were incapable of retaining the memory of their decisions or if they suffered from mild dementia.
“Facility and circumvention”
(iii) Thirdly, if a testator suffers from some weakness of mind and is subject to improper pressure to make a will in terms they would not otherwise have done the will may be reduced (or set aside) by the court. The legal label for this form of invalidity is that the will has been “impetrated by facility and circumvention”.
“Undue influence”
(iv) Fourthly, if there is a relationship of trust and confidence between the Testator and a third party (one example: the Testator and their housekeeper) and that third party has exercised “undue influence” on the Testator in the making of their will then it may be reduced (or set aside) by the court. Such influence being “undue” may however be elided if the Testator has had the benefit of appropriate independent advice.
Fraud
(v) Fifthly, if the Testator was induced by a third party to make and sign their will under some misapprehension as a result of the third party’s deliberate misrepresentation then it may be reduced (or set aside) by the court. It has been said in the courts that: “to succeed [in a case of fraud] the pursuer must prove one or more specific, identifiable instances of deception or misrepresentation by which the deceased was induced to act in a way in which he would not otherwise have acted.” That can be hard to do when the purported Testator will be dead.
Some general comments
Establishing that a will is invalid is perhaps harder to do than one might first think and where a challenge is made in court the whole matter will be examined in great detail. Some observations made by the judge in a case in 2014 (Smyth v Romanes Executor) give a flavour of the challenges:
“Many people make new wills towards the end of their lives, often at a time when they are less alert mentally than they were previously. In that condition they may be tempted to cut corners, make assumptions which they might otherwise not have made, reach quick decisions when ideally they might have thought about them at greater length and in greater depth, re-assess their priorities, become more hard-nosed on the one hand or sentimental on the other, change their minds and generally make all sorts of decisions that they might not earlier have dreamed of making.
In such circumstances it may well be true that the deed or will was to some extent the result of physical, mental or emotional frailty, but that does not matter. Unless there was incapacity, in the sense described [above], or unless undue pressure or influence was used to procure the deed or will in the form in which it was executed, then the deed or will must stand. There is no basis for setting it aside.”
Note: This material is for information purposes only and does not constitute any form of advice or recommendation by us. You should not rely upon it in making any decisions or taking or refraining from taking any action. If you would like us to advise you on any of the matters covered in this material, please contact Heather McKee: email Heather@mitchells-roberton.co.uk