It is possible to set aside a Will or vary it. This can be done if the Will was not completed correctly or if the person making the Will, known as the deponent, did not have mental capacity to do so. The Will can also be varied to make provision for someone who was financially dependent on the deceased.
If a Will is not correctly completed, then an application to the Court should be made to set aside the Will.
There are very strict rules on how a Will should be created. In summary, a Will must be in writing and must be signed by the person making the Will in front of two sane and sighted witnesses. The witnesses must be together (either physically or in certain permitted cases, virtually) when the Will is signed. They cannot witness the Will separately. If this does not happen the Will is invalid and will be set aside if an application to the Court is made to do so.
The person making the Will must have the mental capacity to do so, which means in practice that they must be able to make decisions for themselves. The person making the Will must be able to understand the information relevant to the decisions made in the Will and be able to retain that information and to use that information as part of the process of making the Will. The information relevant to a decision includes information about the reasonably foreseeable consequences of (a) deciding one way or another or (b) failing to make the decision.
If the person making the Will did not have the mental capacity to do so, the Will should be set aside upon application to the Court to do so.
Where a person is financially dependent on the person making the Will and the Will fails to provide financially for that person, then it is possible to apply to the Court to vary the Will to provide for the dependent person financially, after the deponent has died. This is done by virtue of the Inheritance (Provision for Family and Dependants) Act 1975. This is very important legislation as the government decided that in certain circumstances it would be correct to change someone’s Will after their death and without their permission. Consequently, a family member or a partner of the deceased who has not been provided for in the Will at all, or not sufficiently, can apply to the Court for an order that the deceased’s estate pay to them either a lump sum of money or other financial support as may be appropriate.
All of these matters as set out above will be dealt with by the Court by reference to the evidence. To proceed with any of the above applications it is vital that there is the correct and persuasive evidence in support of such applications. We can assist you throughout that process to ensure that it is dealt with correctly.
For further information on the issues raised, please contact Hal Branch at
For advice and assistance on making a Will please contact Miriam Spero at
Branch Austin McCormick LLP
32 St James’s Street
London
SW1A 1HD
