Is this will valid

youyangs

But what about the conflict of interest? Will drafter witnessed a Will they wrote, which benefited their close friend to 95% of an estate, via a Will drafter who they referred to the testatrix..

comeandgo

But they don’t witness the will, they witness a signature.

Sarahspangles

Your friend who is a solicitor already told you that the Will Writer hasn’t followed good practice.

Isn’t the issue you need to address the lack of capacity/undue influence?  Via a caveat.

youyangs

Also the requirement that the witnesses must be present at the same time when the will is signed and must attest and sign the will, implies that they must be independent of the testator and the beneficiaries.

youyangs

comeandgo said:

But they don’t witness the will, they witness a signature.

But a witness can be called to court to attest to the capacity and or undue influence.

p00hsticks

youyangs said:

comeandgo said:

But they don’t witness the will, they witness a signature.

But a witness can be called to court to attest to the capacity and or undue influence.

Can they ? My understanding is that, as others have said, they are simply witnesses to someone signing a document. Whilst they might be able to confirm that the signatory wasn't being physically forced to sign it, I don't see how they can be expected to testify as to the mental capacity or otherwise of the person signing.

After all there's not requirement for them to have any medical knowledge, or even to be personally acquainted with the person signing.
My signature on my will was witnessed by the solicitor drafting the will and their receptionist who was called into the room purely to watch me sign. I'd only met both of them twice, when calling in to first draft and then finalise the will. 

youyangs

Section 15 of the Wills Act 1837 states that an attesting witness “shall be admitted as a witness to prove the execution of such Will, or to prove the validity or invalidity thereof”.

This from the Society of Will Writers website:

"A witness may be called upon at a later date to provide a sworn statement (affidavit) to provide evidence of the circumstances of the signing of the Will if there are any problems with the signatures on the Will, doubts as to the mental capacity of the testator at the time the Will was executed, or any claims that the testator was subjected to undue influence."

With that in mind, the will drafter was a close friend of the main beneficiary, was referred to the testatrix by the main beneficiary, and the testatrix was led to believe the will drafter was a "solicitor". How can the will drafter witness provide an impartial account of the mental capacity of the testatrix, or whether there was undue influence?

If the will drafter was a stranger to all involved and there was no question about mental capacity, then there would be no problem. 

But in this case, I can only see that the will is invalid on execution.

bobster2

youyangs said:

Section 15 of the Wills Act 1837 states that an attesting witness “shall be admitted as a witness to prove the execution of such Will, or to prove the validity or invalidity thereof”.

This from the Society of Will Writers website:

"A witness may be called upon at a later date to provide a sworn statement (affidavit) to provide evidence of the circumstances of the signing of the Will if there are any problems with the signatures on the Will, doubts as to the mental capacity of the testator at the time the Will was executed, or any claims that the testator was subjected to undue influence."

With that in mind, the will drafter was a close friend of the main beneficiary, was referred to the testatrix by the main beneficiary, and the testatrix was led to believe the will drafter was a "solicitor". How can the will drafter witness provide an impartial account of the mental capacity of the testatrix, or whether there was undue influence?

If the will drafter was a stranger to all involved and there was no question about mental capacity, then there would be no problem. 

But in this case, I can only see that the will is invalid on execution.

You seem to have done a lot of background reading on this - and you seem very convinced that the will can be shown to be not valid.  So not quite sure what the purpose of this thread is? You don't need to convince the contributors that the will is not valid. You need to convince a court - and will need specialist legal advice for that.

Sarahspangles

You seem to have done a lot of research, but where is this going?  You need to convince a court, not a bunch of internet strangers. Also if as you say they have already applied for private, is the clock not ticking?  Our most recent application was completed in a month.

youyangs

I've thought of something else, which may be an issue.

I've mentioned previously that there was a "default beneficiary" in the instructions, which without explanation became a "substitutional provision" in the actual will. There are crucial differences between the two.

In both cases the entity to benefit is listed as "various charities" to be decided by the trustees. 

"If the above provisions for the distribution of my Residuary Estate should fail, then the following shall apply: 100% to various charities as selected by my trustee.

If any of the above shares fail then such failed share will be distributed to the other beneficiaries of that clause proportionately according to their shares ."

If I'm reading that correctly. If those named as residual beneficiaries can't inherit for whatever reason and if the will drafter executor is no longer alive, then a trustee that now doesn't exist must distribute the residue to unnamed charities. But if that isn't possible (which it couldn't be), then the remaining beneficiaries would get the residue based on what they have been left.

But what is all beneficiaries had passed away?