Homemade Wills – Are they easier to challenge?
The simple answer is yes they are.
Homemade wills are, generally, easier to challenge. There are a number of things which a Court will be looking for when it considers whether a testator was capable of making a Will.
Firstly, the testator must have had the requisite mental capacity to make a will.
Second, they must also know and approve the contents of that Will.
When a professional Will Writer or Solicitor takes instructions from a client they follow a set of procedures, referred to as the 'Golden Rule'. By doing this they limit the risk of future litigation.
The professional will ask open questions to the testator such as why the testator is making or changing their will, questions as to their understanding of their Estate and details of prospective beneficiaries.
They also can instruct a medical professional to assess whether the testator has the requisite capacity. This is usually when the testator’s wishes are particularly unorthodox or when family members are already thinking about making a claim against the estate when the testator has died.
This procedure will obviously not have been followed if someone is making a will at home. If a testator is elderly or ill, then the lack of medical or professional involvement makes it a lot easier for a disappointed beneficiary to challenge that the testator did not have the required testamentary capacity at the time they made the Will.
If the Will is challenged and the Court has to consider whether someone had capacity, they will examine all the documents from when the Will was made. If a professional was instructed this will include the file and attendance notes as well as any medical report, if obtained. If the Will was homemade, there will be a lack of supporting documents.
Claims for lack of knowledge and approval are closely linked to claims that the testator lacked capacity. Where there are circumstances which “excite the suspicions of the court” then the Court will investigate whether the testator had knowledge and approval.
Suspicious circumstances include concerns about capacity, spelling mistakes and errors, language being used that isn’t common for the testator and, in the case of second or subsequent wills, differences to the first Will. This is particularly important where the beneficiaries have changed.
These sorts of circumstances are more commonly seen in homemade wills.
Finally, if a homemade Will is made with the assistance of a person who hopes to benefit for from the Will, this could give rise to allegations of undue influence by that person. If a Will Writer or Solicitor prepares the Will, they will follow the Golden rule and ensure instructions are taking in the absence of any other person so no allegations of pressure from a third party can be made.