Overturning a witnessed will: an additional 12.5% share

Background

A will is a document with formal requirements. Where those requirements are not met, or where the testator's capacity or freedom is in question, the will does not do the work it was meant to do. In this matter the defence of the estate rested on a witnessed will.

What was done

1. Examined the will's formal validity. The witness arrangements and the execution process were tested against the requirements for that type of will.
2. Assembled the surrounding evidence. Records of the testator's condition and the circumstances in which the document was produced were put together into a single chronology.
3. Separated validity from division. Setting aside the will removed its effect; the division then followed the ordinary rules, with the client's contribution and position argued on the evidence.

Outcome

The witnessed will was set aside and the client obtained an additional 12.5% share over and above her ordinary entitlement.

The practical lesson

Wills are contested on formalities and on circumstance, not on preference. For families with property in more than one country, the formal requirements can differ between jurisdictions, which is why instruments should be reviewed where they will be used. See family wealth protection.

Points to take away

• A will is only as strong as its formalities.
• Build a chronology of the testator's condition and the document's creation.
• Cross-border instruments should be reviewed in each jurisdiction where they will be used.