Holographic Wills: problems during probate

Thursday, November 25th, 2021

Holographic wills are a handwritten alternative to a solicitor-drafted will. Although appearing to be a cheaper option, they can often result in greater risk of fraud, mistakes, and validation problems during probate.

What are the pitfalls you need to avoid? How can a solicitor help ensure your wishes are carried out?

Hanne & Co’s new Associate Herman Cheung delved into these questions and more during The Law Society’s #SolicitorChat this morning.

 

Do holographic wills need to be witnessed or notarised?

 

  • A holographic Will needs to be witnessed but not notarised.
  • A minimum of two or more witnesses are required (there are strict rules as to who can witness the Testator’s signature).
  • In short, the Testator has to sign the Will in the presence of two or more witnesses present at the same time and each witness also signs the will in the presence of the Testator. Section 9 Wills Act 1837 details the necessary requirement for the signing and attestation of Wills.
  • A holographic Will made and executed abroad will need to be compliant with the law of the country in which it is made in relation to witnessing and notarising requirements. If it is deemed valid in that country, it will be recognised as valid in England and Wales even if it does not comply with the requirements set out above.

 

Can a holographic will be made void if a probate court is unable to determine whether the will was signed by the testator? What would be the time, cost and tax implications?

  • The Probate Registry will check the validity of the Will.
  • If the Probate Registry is not satisfied with the Will presented, then it is possible for them to request further information and evidence to ask the applicant to support the Probate application or alternatively deem the Will to be invalid.
  • A lot of time can be spent to gather supporting evidence and potentially legal and administrative costs are involved to support and prove that the Will is valid.
  • If a Will is deemed invalid then all possible inheritance tax reliefs may not apply and inheritance tax (or additional inheritance tax) could be payable as a result.

 

What steps can you take if you believe a loved one’s will is fraudulent, or they have been coerced?

  • Take immediate legal advice to protect your position.
  • It is possible to lodge an entry at the Probate Registry to prevent the issuing of a grant of probate or letters of administration but please note if it was deemed to have been lodged unreasonably or unjustified then there could be costs consequences against you.

 

What added value can a solicitor provide when creating a will to help demonstrate a testator was of sound mind when written?

  • A solicitor will check the mental capacity of the Testator to ensure they have the necessary capacity to make a Will. If they feel appropriate, they may advise upon obtaining, and assist in arranging, a medical report on the testamentary capacity of the Testator.
  • A solicitor will keep attendance notes, file notes and documents to support the Testator’s instructions

 

Preparing a well-drafted will is not a simple process, especially when you consider the number of clauses needed to explain the powers and responsibilities of your trustees and executor. Mistakes can easily be made. What are the benefits of having regulated support when drafting a will compared to an unregulated service?

  • You want someone suitably experienced and qualified (STEP, SFE) as well as regulated (SRA) to ensure your Will is valid and that your loved ones are protected.
  • Regulated services have insurance cover to cover any losses.
  • You can lodge a complaint to the relevant regulation authority and ombudsman.

 

How can we help?

At Hanne & Co our specialist team are on hand to offer you advice on the best way of giving effect to your wishes. Should you require assistance with the above, please do get in touch with our Private Client team on 0207 228 0071 and we will be happy to assist.

 

Contact the author:

Herman Cheung, Associate Solicitor

E: herman.cheung@hanne.co.uk