To make a valid will the testator or testatrix must be at least 18 years of age, of sound mind and acting of their own free will. The formalities of making a will are set out in the Will Act 1837 as amended by the administration of Justice Act 1982, these are, the will must be written. The will must be signed by the testator or another person in the presence of the testator and at his direction, the signature can be any where on the will, the signature or mark must be made or acknowledged in the presence of at least two witnesses who are present at the same time, the witnesses must be competent, the witnesses can not benefit from the will.
There are exceptions to these rules and this is called a privileged will. People on active duty, for example soldiers, sailors and airmen on actual military service do not always have the necessary means to make a valid will, so they can make a will with what ever they have and with out two witnesses. In some cases a verbal will may be accepted. The age limit form making a privileged is also reduced to 14 years of age.
Section: B
At present the Provision for Family and Dependants Act 1975 give courts powers to makes award from the estate in cases where family, dependants or cohabiters have not been reasonably provided for by the will or intestacy. The following have the right to apply: wife of husband of the deceased, a former wife or husband of the deceased as long as the former wife or husband has not remarried, a child of the deceased, anyone who was treated as a child of the close family of the deceased, any other person who was being maintained immediately before the death, partly or wholly by the deceased and the Law Reform Act1995 also allows someone who, though not married, has cohabited with the deceased as husband or wife for at least two years immediately prior to the death.
In some cases the husband or wife can apply for Reasonable Financial Provision if the estate is large and even though what they have inherited in the will or intestacy is reasonable in all circumstances for them to have enough to live, they may be awarded more because the court has decided too much of the estate is not accounted for.
‘’Other applicants must show that they have not been left sufficient financial provision as is reasonable in all circumstances for their maintenance’’. The court will take into consideration the size of he estate, the need of the applicant, the needs of those who benefit under the will or intestacy, the reason why the deceased failed to leave money to the applicant and the way in which the applicant had behaved towards the deceased during his life.
An application must be made with in six months of probate or letters of admonition being granted the application is heard by the County Court or the Family Division of the high court depending on the amount of money involved.
The law is clear and well set out for those who have not been adequately provided for and would like to make a claim on the estate of the diseased. It is not useful to everyone. There are instances where a person may deserve a proportion of the deceased estate but cannot make a legal claim.
For instance, a homosexual couple my have cohabited for many years and perhaps the surviving partner may not be able to maintain themselves after their partner dies. Perhaps the deceased wanted them to be benefit from the estate, but for whatever reason they were not included in the will, it would be very difficult to make a claim on the estate because the person would then have to prove they hade a marriage type relationship but the law does not recognise homosexuals as having a legal partner ship at this time. I think if it did then it would be an improvement on laws regarding wills.
The law although it says anyone who is being maintained by the deceased, immediately before they died they will still be maintained from the deceased’s estate. This does not always come into play. If the deceased sponsored a child, family, animal or a charity organisation such as Oxfam or R.S.P.C.A they cannot make a claim because they were giving money to an organisation and only a person can make claim. Since the money did not go straight to the person benefiting there is a problem. I think this law should be updated or include anyone who has been relying on the deceased can make a claim on the deceased estate if it is what the deceased would want.
The law was made many years ago and was based upon how people lived at that time, which may explain why some people cannot make a claim on wills. When they made laws regarding wills certain situations were very uncommon so it did not seem necessary to include them in the justice system. But at present laws are being updated and improved, so perhaps now will need to be amended so every one who deserves to make a claim on a will is accommodated. Overall without some exceptions the law is adequate on allowing someone to make a claim on the estate of a deceased person if he or she has not been adequately provided for.