Is the Will Valid?

Ascertaining the validity of a Will

If somebody close to you has recently passed away, then the first thing you should do is to get hold of a copy of the Will.

This will allow you to determine whether or not you have been named as an executor. Executors should be informed of the location of the original; if the Will was written by a solicitor, then executors are entitled to request a copy, whereas some proof of identity and proof of the death of the Will maker (through a death certificate) is necessary for the release of the Will.

After acquiring a copy of the Will, executors will have exclusive access to it but will not be able to touch the assets if Probate is required. Once the Grant of Representation is secured from the courts, however, the Will becomes public property, and an application to see it can be made to the Court by anyone.

However, to successfully obtain the Grant, the Will must be valid. That means it must meet the following criteria:

• It must be signed and dated by the testator or testatrix
• It must be in writing
• The signature must have been witnessed by at least 2 witnesses (who cannot be beneficiaries named in the will)
• The Will must not be damaged or tampered with
• All documents referred to in the Will must be available
• The deceased must not have married after writing the Will, unless it was written in anticipation of that marriage and specific precautions were taken

If the Will meets these criteria then you are clear to proceed and should receive your Grant. If this is not the case then we advise you to seek legal guidance. It may turn out that intestacy rules apply.

Partial intestacy rules apply if:

• Executors have not been appointed
• The whole estate has not been allocated, or if beneficiaries have died before the testator 

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