Common errors in Wills
Tips for executors on errors in Wills
Errors in Wills can cause minor delays or major problems. A mistake in a Will is likely to go undetected until death. At that point it becomes the executor’s problem.
Errors generally fall into two categories: mistakes made in the technical drafting of the document and errors made when the document is signed.
Some mistakes are easier to spot than others and some are easier to put right than others. If you’re the executor of a Will containing errors it will be your responsibility to make sure any problems are sorted out.
Here are some common errors in Wills.
Errors in Wills made when the document is written
- Incorrect names – it’s not unusual to find that names of people mentioned in the Will have been spelled wrongly or a nickname or shorter version of someone’s name has been used. Incorrect names are not usually a problem but they may cause delay and some confusion.
- Wrong addresses – It usually isn’t a problem if an address of either an executor or a beneficiary is incorrect in the Will. It’s not a legal requirement to include addresses in a Will. If you need to search for a missing beneficiary an address may be useful as a starting point, but a wrong address could send you off on the wrong track. If the Deceased’s address is different at the time of their death from the one shown in the Will that’s usually not a problem. The death certificate and other personal documents will be used to confirm their official place of residence.
- Inconsistent provisions – sometimes there may be two or more clauses in a Will that don’t make sense or contradict each other. An example might be if one clause in the Will leaves the deceased’s house to a named beneficiary and another clause says all of the deceased’s estate (i.e. everything they own) is to be shared between several beneficiaries. An executor’s duty is to make sure the assets are distributed according to the deceased’s wishes as stated in the Will. If you find an inconsistency within the Will document you should get the problem sorted out before starting to distribute the estate; otherwise, you could be liable if you get it wrong.
- Misunderstanding – sometimes a Will is incorrect because a misunderstanding occurred. This sort of error happens either because the person who prepared the Will didn’t understand the Testator’s instructions correctly or for error No 5 below
- Didn’t know the law – some errors in Wills come about because the person who wrote the Will didn’t know the law and therefore misunderstood the legal effect of the words used. Unfortunately, this is a problem that’s often seen in home-made Wills written without legal advice.
Mistakes in signing the Will
In England and Wales, Wills must comply with section 9 of the Wills Act 1837.
Section 9 requires that:
- the Will is in writing and signed by the Testator (or by someone signing in his presence at his direction);
- the Testator intends to give effect to the Will by signing it;
- The Testator signs the Will in the presence of two or more witnesses who are present at the same time;
- Each witness attests and signs the Will (or acknowledges his signature) in the Testator’s presence.
“The Testator must be physically present during the signing and witnessing of the Will and mentally understand what is the purpose and effect of the document”.
If the Testator doesn’t have the capacity to understand the Will then the Will isn’t valid.
Section 9 also requires at least two witnesses to be present and they must be aware of what it is they are being asked to witness i.e. that they’re witnessing the Testator’s Will.
If there is anything about the Will that could suggest s9 Wills Act 1837 hasn’t been complied with, that could throw doubt on the Will being valid.
Common errors in Wills when the document is signed
- Testator hasn’t signed – if the Testator hasn’t signed the Will the document is invalid. If the Testator couldn’t physically sign the Will and someone else signed on his or her behalf then the Will must include words to make that clear.
- Witnesses sign in the wrong place – sometimes the witnesses sign in the place where the Testator was intended to sign. This creates confusion because it’s not clear whether the witnesses were signing as witnesses or were signing on behalf of the Testator. If the Will has been signed in this way the Probate Registry is going to ask for sworn evidence about the signing of the Will.
- Testator signed another part of the Will – It must be clear that the Testator intended to ‘give effect’ to the Will by signing it. Usually the Testator signs at the end of the Will because that makes it clear he or she intended all of the contents to come into effect. If the Will has been signed at the start of the Will or part way through, that could suggest the Testator didn’t approve all of the contents of the Will.
- The date is missing – it isn’t a legal rule that a Will must be dated but the Probate Registry usually ask for evidence about when the Will was signed if there isn’t a date on the Will.
Check through the Will carefully to make sure it appears to comply with section 9 and if there are any obvious errors take steps straight away to get evidence from witnesses and the file of the solicitors who prepared the Will about the circumstances surrounding making the Will.
DON’T LET MISTAKES RUIN YOUR WILL!
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