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Legal matters

Mumsnet has not checked the qualifications of anyone posting here. If you have any legal concerns we suggest you consult a solicitor.

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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

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Original poster

DollyTwat · 27/03/2011 23:36

it's all so sad and calculated, he loved his mum. All he really wanted was to just have something of hers and to see her looked after when she was alive.

If the sister hadn't been so nasty and told him to keep away and not get involved he wouldn't have found any of this out (with a bit of prodding from me obv). I just couldn't understand why she would want him to not be involved in any way and I think he knows now.

It really isn't the money that's the driving force for him, more justice for his mum who should have been in a home, with proper care.

So, from this thread I think I 've concluded that 1. the will is invalid for two reasons, the witnesses not being present at the same time and that he was a relative and so shouldn't have witnessed it.

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Collaborate · 27/03/2011 23:37

The will is invalid.

Your friend should pronto instruct a probate solicitor to get involved, and perhaps apply for probate. He should put a caveat in place

HopeEternal · 27/03/2011 23:37

Dolly, please urge your friend to see a solicitor immediately. He should take with him the copy of the will, the signed statement from the second witness and all documentation he may have relating to the registered ownership of the house.

Original poster

DollyTwat · 27/03/2011 23:44

thanks HopeEternal ad Collaborate, that's what I've told him. He must see someone tomorrow, he can't do this at his own pace.

He has put a caveat on the probate, which he thinks stops probate being granted for 6 months, however there was some question over which address she might use to apply. So that if she used a different address from her own it might be missed that there was a caveat. I don't really understand this.

She has already started being nasty by starting an investigation into his housing benefit, as she has a friend who works at the benefit office. He's answered their questions and fought back by saying he will bring his business accounts in to the offices, and they've apologised and put everything back as it should be. I think he's going to see a big backlash from this.

She is a really nasty piece of work (and he's so lovely) I just need to keep him motivated to DO something

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mumblechum1 · 28/03/2011 08:00

Agree, the Will is about as invalid as it could be. In these circs, the law of intestacy will apply, and as I presume the deceased was a widow, that means that her estate will be divided equally between her surviving children.

Original poster

DollyTwat · 28/03/2011 09:24

thanks for the support, I'll update later when he's been to the sol

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mumoverseas · 28/03/2011 13:10

Invalid, a relative of the beneficiary cannot witness the will.

This happened to my late aunt around 6 years ago. The will was drafted by Solicitors who sent it to her to get executed (witnessed) She got her sister-in-laws husband to witness it. SIL was the residuary beneficiary. The will was valid but her gift was not so as far as I recall, the residue of her estate after gifts went to the cats home!

Original poster

DollyTwat · 28/03/2011 16:03

I told him about the relative not being able to witness, but he says they aren't married (I assumed they were).

But he's written a letter and taken it along with the witness statement to the sister's solicitor today. He's taken the For Sale sign down.

He's seeing his solicitor next week

She's going to be upset isn't she. Will keep you updated

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sneezecakesmum · 28/03/2011 23:26

The person making the will (testator's) signature must be co signed by two witnesses there at the same time. They do not need to see the testator signing but the testator must acknowledge that it is their signature.

The only time the witnesses can be there on separate occasions is if the first witness returns and the second witness signs after the testator and the first witness acknowledge their signatures as valid.

Because the BIL wasn't there at the 'other persons' signing the will is invalid.
The above applies to non solicitor wills.
Solicitors will usually have an 'attestation clause' which is when both witnesses are present.
The rest is so complicated but if the deeds of the house are still in the mums name I cant see how the house can belong to the sister.
Any assets would be divided between the children of the deceased equally.
She sounds like a right piece of work this sister.

Original poster

DollyTwat · 29/03/2011 09:32

the most upsetting thing for him is that he can now see how calculated it's all been, not letting anyone help her, family rows presumably so that she could get the house sold etc without anyone questioning it. She told the whole family she had bought the house and it was now hers.

He's going to trawl the charity shops now, to see if he can recover anything of his mums.

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divorcediva · 29/03/2011 15:59

I am a lawyer and the answer is both witnesses have to be present at the same time and remain in the room and watch the person sign their will and then remain while they both sign and give their details.

Anyone who is mentioned in the will as benefitting cannot be a witness to that same will. I always advise their spouses or partners should not be a witness and same about any executors. This avoids and later suggestion of skulduggery.
I would get legal advice from a solicitor who deals in probate disputes, not a will writer as they are not qualified or insured. By all means let me know where you are based and I could suggest someone or look at the law society's website which lists all lawyers by area of expertis and situation.
good luck.

mumblechum1 · 29/03/2011 19:02

Ahem, "Will Writers are not qualified or insured"??

I am, on both counts! Fully qualified and paying an arm and a leg for indemnity insurance up to £2m!
But yes, as I mentioned earlier, both need to be present. The attestation clause is "witnessed in the presence of the Testator and of each other"

mumblechum1 · 29/03/2011 19:23

That's what happens when you're being dragged out the door when trying to post - I meant to say
"Signed by the Testator in our presence and attested by us in the presence of the Testator and of each other"

Original poster

DollyTwat · 29/03/2011 21:37

I haven't heard anything from him, I wonder if she'll find a previous will??

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wasthatthatguy · 30/03/2011 11:05

DollyTwat I am not a lawyer. I think any judge considering the situation would want to dedcide what the mother intended to happen. A few years ago someone told me about a case where a woman challenged her brother's "will", which was hand written on a sheet of paper, possibly not even "witnessed" by anyone other than the brother who wrote it. She lost and had to sell her house to pay her and the beneficiary's legal fees! The judge found that the brother had intended what was written on the sheet of paper. Re the situation you describe, the daughter has a document hand written by the mother, the "will", confirming that she wanted to leave her house to her daughter. The daughter also has one of the witnesses to the "will", ie in addition to her husband, who has confirmed that the "will" correctly stated what the mother wanted to happen. If the son doesn't have anything to "confirm" that his mother wanted something different to happen, I think he may well lose any legal challenge to the "will" and end up having to pay his and his sister's legal fees!

Collaborate · 30/03/2011 11:14

You're so, so wrong wasthatthatguy

nottirednow · 30/03/2011 11:33

This reply has been deleted

Message withdrawn

mumoverseas · 30/03/2011 14:15

come on guys, give me case names as its bugging me now!

prh47bridge · 30/03/2011 14:38

The will on an eggshell case was Hodson v Barnes in 1926. Can't help you with the other one, I'm afraid.

Collaborate · 30/03/2011 16:13

I recall Spike Milligan once wrote a cheque on the side of a cow, if that helps. I do believe the bank honoured it.

Original poster

DollyTwat · 30/03/2011 16:53

thanks collaborate! That info will come in handy one day I'm sure!

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mumoverseas · 30/03/2011 16:55

Collaborate · 30/03/2011 16:57

Bit hard for the bank to bounce it though.

...I'll get my coat.

mumoverseas · 30/03/2011 17:08

Original poster

DollyTwat · 30/03/2011 17:52

Wish I'd paid my ex off with a cheque written On a bull

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