Why wills fail |
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Michael King looks at why wills fail.
A will is a legal document in which a person known as a testator directs how his assets are to be disposed of after the death. Sometimes it is not possible to distribute the estate according to a testator’s wishes because of flaws in the will. The will can then be said to have failed. Wills can fail in two kinds of situation. One is where the will itself is not valid. If a will is not valid there is in effect no will. The other is where the will is valid, but fails because it does not bring into effect the wishes of the testator.
Invalid wills
One situation in which a will is invalid is where it was not executed in accordance with the requirements of section 9 of the Wills
Act 1833, which sets out the formalities for the execution of wills. Briefly, these are as follows:
• the will must be in writing
• it must be signed by the testator or by another person on the testator’s behalf and by his direction
• the testator’s signature must be made in the physical and mental presence of two witnesses who are present at the same time.
There are some special cases where a will can be valid even though these requirements have not been met, but in the vast majority of cases if a will is not in writing and signed and witnessed in accordance with the requirements of section 9 it is invalid and will therefore fail.
A will may appear to have been validly executed, but is in fact invalid because the testator lacked ‘testamentary capacity’ – i.e. he or she was under the age of 18 when the will was made. There are again some special cases in which a testator under the age of 18 can make a valid will, but generally a person must be at least 18 years old to make a valid will.
A will that appears to have been validly executed can also be invalid if the testator lacked mental capacity. The case of Banks v. Goodfellow (1870) LRS QB 549 sets out the legal test for mental capacity which is as follows:
• the testator must know that he is making a will
• he must know the extent of his assets
• he must be aware of potential claims against the estate
An additional test stated in Ledger v. Wooton (2007) is that the testator is not suffering from an illness which poisons his affections, perverts his sense of right or prevents the exercise of his natural faculties. There has been much litigation about mental capacity and the courts have set out various guidelines for will draftsmen, but the general rule is that if a testator lacks mental capacity when the will is made it is invalid.
A will is also invalid if the testator did not have ‘knowledge and approval’ of the contents of the will. Mental capacity is a prerequisite of knowledge and approval, but mental capacity and knowledge and approval are not synonymous, so there can be situations in which a testator is mentally competent but the will is invalid because the testator lacked knowledge and approval of its contents.
If another person forces the testator into making a will and the testator is not acting freely, there is ‘undue influence’. In such circumstances, knowledge and approval cannot be presumed and the will is therefore invalid.
Wills that are valid, but do not give effect to the wishes of the testator
Wills that have been properly executed and are therefore valid wills can fail to the extent that they do not properly or fully express the testator’s wishes. The following is not an exhaustive list of situations in which validly executed wills do not give effect to the wishes of a testator, but they are probably the most common.
One example of such a will is where a testator makes provision for a particular beneficiary, but the beneficiary dies before the testator. If this happens the gift becomes part of the residue of the estate and is distributed accordingly. If all the beneficiaries die before the testator the entire estate will have to be distributed according to the intestacy rules. It is unlikely that this is what the testator would have wanted because one reason that people make wills is to avoid a situation in which their estate is distributed according to the intestacy rules. One way to avoid this is to review one’s will from time to time and to make new wills as circumstances change, but this may not always be possible, so it is always a good idea to include in the will substitutional provisions which will direct the gifts to alternative beneficiaries in the event of first-named beneficiaries predeceasing the testator.
There are numerous other situations in which wills that have been validly executed can fail. One is where there is no provision disposing of the residue of the testator’s estate. When there is no residuary clause, a partial intestacy will arise and the residue will be distributed according to the intestacy rules. Another is where a will does not contain a clause revoking all previous wills. A previous will that has not been revoked remains valid and after the death it must be read together with the later will for the purpose of distributing the estate. Another example of partial failure is where a beneficiary of a will was also a witness. This causes the will to fail to the extent that the gift to that beneficiary is invalid.
Taking precautions against failure of wills
When a will fails because it is invalid there is either an intestacy and the estate is dealt with according to the intestacy rules or an earlier valid will comes into effect and the estate is distributed according to the terms of that will. When a will is valid, but fails to give effect to the testator’s wishes the assets that are affected may have to be either distributed according to the residuary provisions of the will or according to the intestacy rules. None of these scenarios will be what the testator intended or wished for, so it is important to ensure that one’s will is valid.
June 2012
Disclaimer:
A will is a legal document in which a person known as a testator directs how his assets are to be disposed of after the death. Sometimes it is not possible to distribute the estate according to a testator’s wishes because of flaws in the will. The will can then be said to have failed. Wills can fail in two kinds of situation. One is where the will itself is not valid. If a will is not valid there is in effect no will. The other is where the will is valid, but fails because it does not bring into effect the wishes of the testator.
Invalid wills
One situation in which a will is invalid is where it was not executed in accordance with the requirements of section 9 of the Wills
Act 1833, which sets out the formalities for the execution of wills. Briefly, these are as follows:
• the will must be in writing
• it must be signed by the testator or by another person on the testator’s behalf and by his direction
• the testator’s signature must be made in the physical and mental presence of two witnesses who are present at the same time.
There are some special cases where a will can be valid even though these requirements have not been met, but in the vast majority of cases if a will is not in writing and signed and witnessed in accordance with the requirements of section 9 it is invalid and will therefore fail.
A will may appear to have been validly executed, but is in fact invalid because the testator lacked ‘testamentary capacity’ – i.e. he or she was under the age of 18 when the will was made. There are again some special cases in which a testator under the age of 18 can make a valid will, but generally a person must be at least 18 years old to make a valid will.
A will that appears to have been validly executed can also be invalid if the testator lacked mental capacity. The case of Banks v. Goodfellow (1870) LRS QB 549 sets out the legal test for mental capacity which is as follows:
• the testator must know that he is making a will
• he must know the extent of his assets
• he must be aware of potential claims against the estate
An additional test stated in Ledger v. Wooton (2007) is that the testator is not suffering from an illness which poisons his affections, perverts his sense of right or prevents the exercise of his natural faculties. There has been much litigation about mental capacity and the courts have set out various guidelines for will draftsmen, but the general rule is that if a testator lacks mental capacity when the will is made it is invalid.
A will is also invalid if the testator did not have ‘knowledge and approval’ of the contents of the will. Mental capacity is a prerequisite of knowledge and approval, but mental capacity and knowledge and approval are not synonymous, so there can be situations in which a testator is mentally competent but the will is invalid because the testator lacked knowledge and approval of its contents.
If another person forces the testator into making a will and the testator is not acting freely, there is ‘undue influence’. In such circumstances, knowledge and approval cannot be presumed and the will is therefore invalid.
Wills that are valid, but do not give effect to the wishes of the testator
Wills that have been properly executed and are therefore valid wills can fail to the extent that they do not properly or fully express the testator’s wishes. The following is not an exhaustive list of situations in which validly executed wills do not give effect to the wishes of a testator, but they are probably the most common.
One example of such a will is where a testator makes provision for a particular beneficiary, but the beneficiary dies before the testator. If this happens the gift becomes part of the residue of the estate and is distributed accordingly. If all the beneficiaries die before the testator the entire estate will have to be distributed according to the intestacy rules. It is unlikely that this is what the testator would have wanted because one reason that people make wills is to avoid a situation in which their estate is distributed according to the intestacy rules. One way to avoid this is to review one’s will from time to time and to make new wills as circumstances change, but this may not always be possible, so it is always a good idea to include in the will substitutional provisions which will direct the gifts to alternative beneficiaries in the event of first-named beneficiaries predeceasing the testator.
There are numerous other situations in which wills that have been validly executed can fail. One is where there is no provision disposing of the residue of the testator’s estate. When there is no residuary clause, a partial intestacy will arise and the residue will be distributed according to the intestacy rules. Another is where a will does not contain a clause revoking all previous wills. A previous will that has not been revoked remains valid and after the death it must be read together with the later will for the purpose of distributing the estate. Another example of partial failure is where a beneficiary of a will was also a witness. This causes the will to fail to the extent that the gift to that beneficiary is invalid.
Taking precautions against failure of wills
When a will fails because it is invalid there is either an intestacy and the estate is dealt with according to the intestacy rules or an earlier valid will comes into effect and the estate is distributed according to the terms of that will. When a will is valid, but fails to give effect to the testator’s wishes the assets that are affected may have to be either distributed according to the residuary provisions of the will or according to the intestacy rules. None of these scenarios will be what the testator intended or wished for, so it is important to ensure that one’s will is valid.
June 2012
Disclaimer: