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Original poster

anyone know about wills and if it might be invalid?

86 replies

DollyTwat · 27/03/2011 20:01

If a will has been witnessed by two people, but it turns out that one person wasn't there the same time as the other, does that make the will invalid?

If it does, how do you go about stopping probate being granted?

There is a lot more to this but just wanted to find out this first. Thanks if you can help

OP posts:
pinkteddy · 27/03/2011 20:07

To be a valid will it has to be signed by the person making the will and signed by two witnesses. A witness or married partner of a witness cannot benefit from the will. I'm not sure how you could prove that one of the witnesses wasn't there?

This website has some useful info and also information on challenging a will. There are strict time limits on challenging a will though.

family wills

Hulababy · 27/03/2011 20:10

Who wasn't there when the will wasn't signed?

The two witnesses don;t need to be present at the same time, but they do need to have seen that the person writing the will knows what is says and believe it is reflecting their wishes.

Not clear from your post.

DH is a solicitor who specialises in this area of law. However he is away today so I can't ask him til tomorrow night.

Original poster
DollyTwat · 27/03/2011 20:15

The witnesses signed at different times
And it can be proven as witness 1 has signed to confirm it

Bit confused tho as you both say different things!

OP posts:
pinkteddy · 27/03/2011 20:26

Look on the website, it doesn't say anything about witnesses being there at the same time although I interpreted it as that. If Hulababy's DH is a lawyer I would take her advice. I'm only speaking from experience not a legal point of view.

bringinghomethebacon · 27/03/2011 20:31

This reply has been deleted

Message withdrawn at poster's request.

bringinghomethebacon · 27/03/2011 20:32

This reply has been deleted

Message withdrawn at poster's request.

Collaborate · 27/03/2011 20:55

My wife is a probate solicitor. the will is invalid. "Signed by the testator in our joint presence, then by us in his/hers" is the usual attestation clause.

Bringinghomethebacon is correct.

Original poster
DollyTwat · 27/03/2011 20:56

I really need a definite answer on this one if anyone knows. I'm asking on behalf of a good friend. There is a story behind this which I'll share, but if the will is valid it changes everything

OP posts:
bringinghomethebacon · 27/03/2011 21:09

This reply has been deleted

Message withdrawn at poster's request.

Original poster
DollyTwat · 27/03/2011 21:11

OK this is what's happened.

My friend has 5 siblings, about 7 years ago one of his sisters told the rest of the family that she'd bought the mother's house for £75. There was lots of arguments within the family about this, but she said she'd look after the mum in return for the house. The mum was very frail, and died at Christmas time. This sister has fallen out with most of the family, more recently with my friend. Every time he mentioned her having more help at home, or going into a care home she absolutely refused.

She wouldn't give him details of the funeral or anything. He was really upset and told me all about what had happened in the past. She said the house was hers, and to keep out of it, the rest of the family have accepted this.

His mums house had been a council house, so I did a bit of digging and found out the the sister wouldn't have been able to buy it unless they had bought it together or she'd lived there. So my friend did a land registry search and it turns out the house was still in his mum's name.

He then got a copy of the will, which was handwrittten by his mum and left everything to his sister. It was witnessed by his BIL and someone else, so he went to see this other person who confirmed that the sister and mum had been round a few years ago and they had witnessed the will. They hadn't seen her sign it and the BIL wasn't there. They have signed a letter confirming this.

Now, we did a bit of research on the net and thought that the will was invalid. He's put some kind of a stop to the probate, or so he thought. He's been to his mum's house today and it's been cleared out and a for sale sign is outside.

He's really upset, he didn't have anything from his mum's house just to remind him of her, he saw his mum suffer with mediocre care from his sister and now knows why she wouldn't get any help as it would have taken the money from the house.

What does he do now? He's not revealed the letter he has about the witnesses as he didn't want to just at the moment as he's still mourning his mum.

Can she clear the house? What can he do about it?
I really feel for him and I've told him to get some proper advice tomoroow, but I wondered if anyone on here could help as well.

OP posts:
Original poster
DollyTwat · 27/03/2011 21:13

x posts Collaborate

so now what happens? can he apply to be adminstrator? She's carrying on even though probate isn't granted

OP posts:
Hulababy · 27/03/2011 22:00

I think there can be situations where the witnesses sign seperately. It is more usual to be together. depends on what the witness clause bit states.

But DH isn;t here so I couldn't ask him. Looks like another poster has a wife who is a probate solicitor who can give you a clearer answer anyway.

Northernlurker · 27/03/2011 22:07

I think your friend needs to bear in mind though that his mum was cared for in her own home and expressed a clear wish that this daughter only inherit the house. Unless she was incapable at the time she wrote the 'will' he should respect her wishes and back off.

Hulababy · 27/03/2011 22:15

DollyTwat - that does sound vey suscipicious re the sister taking mum round to have someone witness thethe will but her not signing it in front of him, etc.

Was the mum is sound mind at the time of writing the will? Is it likely she could have been coersed into writing it?

Original poster
DollyTwat · 27/03/2011 22:22

You know I think if he believed that she hadn't planned the whole thing he would just leave it, but lots of things have fallen into place. Family fall outs and her falling out with him so that he would just go away. She does seem to have refused to get her any help (that was badly needed) so that the family didn't find out the house was still in the mum's name.

The other thing is Northernlurker, is that his mum believed the house to have been bought by the sister. She talked about the house belonging to her. She clearly didn't understand that it wasn't hers yet. So you could argue that the will that leaves everything to her daughter doesnt include the house as the mum thought it was already hers.

OP posts:
Hulababy · 27/03/2011 22:23

I think they need to go and see a probate solicitor.

Original poster
DollyTwat · 27/03/2011 22:36

yes I've told him he has to go and get some proper advice now, but the shock of seeing the house for sale and cleared has really upset him.

The BIL apparently has done the same thing with 2 other relatives of his (putting up the money to buy from the council then inherritting the lot) so there is something very odd going on.

OP posts:
HopeEternal · 27/03/2011 22:45

Dolly, you say: "He then got a copy of the will, which was handwrittten by his mum and left everything to his sister. It was witnessed by his BIL and someone else, so he went to see this other person who confirmed that the sister and mum had been round a few years ago and they had witnessed the will. They hadn't seen her sign it and the BIL wasn't there. They have signed a letter confirming this."

Do you mean that the BIL who was one of the witnesses is the husband of the sister who is named in the will?

Original poster
DollyTwat · 27/03/2011 23:09

HopeEternal yes the husband of the sister who has been left everything witnessed the will, but obv at a later date than the other witnesses.

OP posts:
Original poster
DollyTwat · 27/03/2011 23:12

and the other thing is that the amount the sister said she paid for the house, is not what's on the title deeds. It says the house was bought for considerably less, which raises the question over whether his mum's savings was used to put towards the cost of the house. His mum believed the cost to be the higher one. So in actual fact his mum probably bought the house herself, but the sister is claiming to have put the money in herself.

OP posts:
pinkteddy · 27/03/2011 23:17

A witness or the married partner of a witness cannot benefit from a will. If a witness is a beneficiary (or the married partner or civil partner of a beneficiary), the will is still valid but the beneficiary will not be able to inherit under the will.

I copied and pasted this off the link I posted earlier.

GastonTheLadybird · 27/03/2011 23:17

No expert but thought immediate family couldn't witness a will anyway so it being signed by BIL would invalidate it?

Original poster
DollyTwat · 27/03/2011 23:22

yes I saw that but didn't understand if that meant that the BIL couldn't benefit or whether that mean the sister couldn't benefit. I think it's invalid as others have confirmed, but the big problem here is that the house is on the market and has been cleared.

OP posts:
pooka · 27/03/2011 23:23

Witness cannot be related to the person writing the will or to the legatees. SO the BIL is not a witness. Or should not have been.

Or at least that was my understanding (my mum has recently written her will, and all sorts of power of attorney stuff and it has involved getting people who aren't family members in to sign).

pooka · 27/03/2011 23:26

I think a house can be marketed for sale prior to probate being completed.

My grandmother's house was marketed for sale. The money raised from the sale went into the probate account held by the executors of the will (my aunts). Upon death duties being paid, probate was completed and the remaining money was distributed according to the terms of the will.

Your friend should absolutely contact the solicitors dealing with the will and/or his own solicitor.