We are often asked, ‘Is a handwritten will legal?’ Kristi Kirkham, a specialist in contested wills, provides the answer.
Yes, handwritten wills can be legal, provided they comply with the following legal formalities:
- The will must be in writing,
- The testator must be aged 18, or over,
- The testator must be of sound mind,
- The testator must be making the will voluntarily, and
- The will must be signed by the testator in the presence of two witnesses.
The drawbacks of handwritten wills
Handwritten wills present their own set of challenges and can easily fall foul of the legal requirements. Even if a will is valid, some of the provisions may not be, and this could result in a partial intestacy.
The pitfalls of homemade wills include:
- Failure to identify Executors,
- Inclusion of handwritten amendments,
- Failure to identify substitute beneficiaries when one dies before the testator (known as a per stirpes clause), and
- Use of ambiguous language which can give rise to a contested will dispute.
Contesting a handwritten will
You can challenge the legal validity of a handwritten will on any one, or more, of the following grounds:
- Lack of testamentary capacity
- Want (lack) of knowledge and approval
- Failure to comply with formalities (i.e. not witnessed properly, or at all)
- Undue influence
- Fraud
Any of the above grounds can give rise to a dispute, or lead to partial intestacy.
While you can challenge the legal validity of a handwritten will if you have grounds to do so, it is only worth proceeding with a claim if you are certain you benefit from a previous will or, if there is no previous will, under the rules of intestacy.
Proving that a handwritten will is invalid
The burden is on you as the person contesting the will to prove that the will is invalid for any of the above reasons. With professionally prepared wills, the first step is usually for us to obtain a copy of the will preparation file from the solicitors who prepared it, but with homemade, handwritten wills this is not an option. The investigation stage therefore tends to be more complex with a handwritten will, and each case needs to be considered on its own facts.
We would often obtain witness statements from anyone who helped to prepare the will, or who discussed the will with the testator. We would also speak to the people who witnessed the will. If they refuse to cooperate then the Probate Registry can issue a summons requiring the witnesses to comply.
While the validity of a will can only ultimately be determined by a court, the vast majority of will disputes are resolved without court proceedings, most often via mediation.
How we can help you with a dispute involving a handwritten will
If you are concerned about the validity of a handwritten will, please get in touch with us today for a free consultation to determine if you can make a claim and the funding options available to you.
Our Legal 500 recommended will dispute solicitors will be happy to review of your case free of charge and offer guidance on making a legal challenge.
