Online but off target!

14th January 2021

One recent case we acted on highlights the importance of ensuring a will is valid – and the pitfalls of not doing so.

The litigation team at Schofield Sweeney is acting for the executors of the estate of their late son.  He made a will using an online will-writing service provided by one of the leading insurers.  When he made the will, he had a partner with whom he had lived for under two years and she was expecting their child. Unfortunately, he died within days of the child being born.

The will was unusual as it left his entire estate to his parents but the will was accompanied by a letter of wishes asking his parents to make some provision for his partner and to set up a trust fund for his child. He appointed his parents the executors of the will.

Perhaps, not surprisingly given the circumstances, the partner has consulted solicitors and the events leading to the making of the will have come under the spotlight. It’s now come to light that, whilst on the face of it the will was properly made (it is signed by the testator and the two witnesses), the witnesses signed the will before he did and did not see him sign it.

The Wills Act 1837 is of some vintage, but it is relatively straightforward in that it says that a will is not valid unless:-

  1. It is in writing;
  2. It is signed by the testator or someone else who is present and at his direction;
  3. The testator intends his signature to give effect to the will;
  4. The signature is made or acknowledged in the presence of two or more witnesses who were there at the same time; and
  5. The witnesses sign or acknowledge their signatures in the presence of the testator.

Unfortunately, whilst he was present with the two witnesses who both signed the will, he did not sign it in their presence – so it does not meet the requirements of the Act.  It is ineffective and means he died intestate; the sole beneficiary under the intestacy is his daughter.  This might turn out to be the result that he wanted but it is not what was expressed in the will.

This shows the perils that can arise from either writing a homemade will or using an online service where there is no direct contact between the testator and the lawyer.  In this example, the instructions were given online and although there were email exchanges that does not take the place of human interaction; if he had seen a solicitor about the will it would undoubtedly been properly executed and his will would have been valid.

At Schofield Sweeney, our private wealth & succession team are trusted to advise multiple generations of families with their wills and other aspects of estate planning, from family businesses to trusts and ensure clients receive the attention they require.

If you need advice on planning for the future of your family and making sure you have the right measures in place, we’re here to help – get in touch.

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