Lawyer Monthly Magazine - July 2019 Edition

executed and signed in the presence of witnesses) and also was not properly dated. Although the will was still found to be valid, its handwritten nature threw up a number of problems, including the identity of beneficiaries (Aleksic named a ‘Brit. Cancer Research’ - an organisation which does not exist!) and whether the phrase ‘And all the money. Which is left’ worked as a residuary clause and applied to non-monetary as well as monetary assets. Therefore, though a handwritten will can be legally valid, both Aleksic and Aretha’s cases demonstrate the major issues which can arise from unclear wording and why they should be avoided. Does annotating a Will make it invalid? In terms of Franklin’s annotation of the alleged wills, this too does not automatically invalidate the documents. It’s common to want to make amendments to a standing will, but the best course of action is to make an entirely new will or write a codicil, rather than make any amendments on the face of the original will. The cost of drawing up a new will may end up being much less than the costs of dealing with issues of unclear or invalid amendments! However, there are cases when a testator may make changes on the copy of the original will: if they refuse to draw up another; if the amendments do not affect the will’s meaning (i.e. correcting spellings or changing an address) or if the need to make the amendments is urgent (if the testator is about to travel). In order to make these changes valid, the amendments should be made by the testator as clearly as possible in ink (including ballpoint), and the testator and both witnesses should sign or add their initials either close to the amendments, or to a memorandum referring to the amendments. If there are multiple Wills in existence, which one stands? It’s common to want to revise a will as circumstances change and priorities shift and, as seen above, this should mean a new will is drawn up and that multiple wills would exist. When there are multiple wills after an individual’s death, the Probate Registry will generally accept the most recent will, as when a new will is properly executed, this automatically revokes all previous versions. When there is contention over wills it’s always the latest will which is chosen as the correct one, unless it is found to be defective, in which case the previous will comes into play. Though previous, redundant wills do not need to be physically destroyed, to avoid confusion it’s best to destroy old wills when executing new ones. Writing ‘cancelled’ or ‘void’ across the top will technically suffice but it’s best to simply shred or completely destroy the document. In Franklin’s case, the most recently dated will, if valid, would be the one which stands. However, the unorthodox writing and discovery of the document means it is open to being challenged and if found to be defective, one of the previous wills could prevail instead. What do you do when a Will is discovered late? Just because a will is discovered some time after someone’s death, as with Franklin, that doesn’t mean it can’t still be upheld. When someone dies, the personal representatives of their estate apply for a Grant of Probate/ Letters of Administration, which give the executor or administrator the authority to deal with the deceased’s assets. They can apply for this withor without awill. However, if, a will or later-dated will is discovered, it is possible to revoke the original grant. If the grant is revoked, a new grant should be applied for according to the terms of the new will. If the personal representatives have already made distributions from the estate in accordance with either an old will or intestacy rules (where no will is thought to exist), then they will need to recover those distributions from the beneficiaries. This can get very complex if the beneficiaries have already spent the money. When someone dies with no will, they die ‘intestate’, which means there are certain rules dictating how your estate is to ABOUT HARDEEP NIHJER Hardeep Nihjer is Senior Associate at Lawrence Ste- phens Solicitors and spe- cialises in Wills, Probate, Estate Planning and Trusts, Court of Protection appli- cations, Lasting Powers of Attorney and Charity Law. be distributed and these are not within individual control. Even if there is known to have been a will in the deceased’s possession, if this cannot be found it is presumed that this will has been revoked by destruction and it’s up to those who wish to prove the will to challenge this presumption. The challenge will rely heavily on the circumstances and reasons around how the will went missing. If there is sufficient evidence which indicates the missing will was not intended for destruction by the testator, then the challenge can be upheld. Dealing with the loss of a loved one is hard enough without being forced into difficult legal complications and a drawn-out probate process. As we wait to hear the outcome of the June 12th hearing regarding Franklin’s estate, it’s worth ensuring your will is ‘Rock Steady’ so it won’t cause any posthumous problems. LM 21 Lawrence Stephens Solicitors JUL 2019 www. lawyer-monthly .com