What is a Grant of Probate, and what is a Will?

Advice

Grant of Probate

A Grant of Probate is the official Court document that confirms which people have authority to deal with the deceased person’s estate.

If the Deceased died without making a Will, then the Grant of Probate is referred to as ‘Letters of Administration’.

The word ‘probate’ is derived from the Latin word “probationis”, meaning “to prove”.

To probate a person’s estate is to prove that appropriate people can administer it, and prove that the correct beneficiaries should inherit it.

At the time of writing, if the value of the estate exceeds £15,000 then it is necessary for appropriate people to apply for a Grant of Probate in order to call in the Deceased person’s assets, pay off his debts, and distribute his estate appropriately to his beneficiaries. Some financial institutions may insist in seeing a Grant even if the estate is worth less than £15,000.

What is a Will?

A Will is the document, or collection of documents, with which a person communicates who should administer his estate, and who should receive the benefit of it.

What formalities must be complied with?

First of all, unless some special circumstances arising from military service apply, the Will-maker must be over 18 years old.

Secondly, the Will must be in writing.

Once the document is written, it must be signed by the will-maker, or by someone who is authorised to sign it in his presence. If necessary, this can be in the form of a thumbprint or a seal or even a scrawl. Unless the will was hand-drafted to completion on one occasion, the signature must be applied after the testamentary terms have been completed.

It must appear that the will maker intended to give effect to the will by signing it. If he does not know he is signing a will, it is invalid. If he signs it, but thinks that something more must be done to bring the will into effect, it is not valid. However, if 2 will makers producing mirror wills each mistakenly sign the wrong documents, they nevertheless intended their mirror terms to be brought into effect and the court will allow the mistakes to be rectified.

The will maker must sign the document, or acknowledge his signature, in the presence of at least 2 witnesses. Those witnesses must also sign the document, or acknowledged their respective signatures, in the presence of each other. The witnesses do not need to know the content of the will, or even that it is a will. They merely need to know that the will-maker has validly signed the document. In ideal circumstances, both witnesses should be present at the same time and should watch the will-maker apply his signature before also signing the document themselves. However, after the will-maker has applied his own signature, and is present when each witness signs, and provided the first witness is present when the second witness signs, so that each party can acknowledge their own signatures to the rest, then the formalities will have been properly complied with. So, for example, if the will-maker signs his will whilst he is alone, and then takes the document to the first witness, and acknowledges his own signature to that witness who in turn signs the will, and then later in the day or perhaps even on a different date, the second witness signs the will in the presence of the will-maker and the first witness, who have each acknowledged their own signature to the second witness, then the will shall become formally valid as soon as the second witness applies his signature.

Any gift made to an attesting witness, or the spouse of an attesting witness, is void.

A marriage or civil partnership shall render a will void unless the will-maker provided within the will that it should not be made void by a contemplated marriage or civil partnership to a particular person.

A divorce or annulment of a marriage or civil partnership will render void any provisions within a will that concern the spouse, whether it be appointment as an executor or a gift, unless the will-maker provides otherwise within the will.

A will can be revoked by that making of another will, or by proven stated intention, or by destruction.

Any alterations to a will must follow the same formalities as a will with regard to execution and witnessing.

A revoked will can only be revived by re-execution or by a codicil stating an intention to revive it.

Any gift to a child or other descendent shall pass to the recipient’s offspring if the recipient shall pre-deceased the will-maker, unless the will specifically states otherwise (for example “section 33 of the Wills Act 1837 shall have no effect”).

If a beneficiary refuses a gift, or is deemed to have forfeited that gift, then the gift shall pass as if that person died.

Whilst it is not compulsory for a will to contain an attestation clause, if there is no such clause when the will comes to be proven, it will be necessary to provide affidavit evidence as to the formal validity of the will. If there is an attestation clause, then the courts will presume that all formalities were complied with.

If a will is invalid because it did not comply with all of the formalities, then it does not stand. If there was a previous valid will, this will be deemed to be the true last will. Remember, the making of a new will automatically revokes an older will (unless the contrary is specifically provided for). If the last will is invalid, then it did not in fact revoke the older will, which therefore remains the last valid will. If there was no previous will, either because the will-maker never actually made one, or because an older will had already been revoked for other reasons, then rule rules of intestacy will apply.

If you think that a will is invalid because the will-maker did not comply with all of the formalities when the will was made, and you benefit by the circumstances that should apply instead, you should consider protecting your position by applying for a caveat.

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