Is my mother's will legal?

"My mother died eight years ago, and although she had written a will, it had not been witnessed. As she had concerns about providing for the children when she died, after her death my father had a friend witness the will, which passed her estate on to him.

"He has now married again and is selling the family home as his new wife says it’s not hers. Is it too late to contest the will on the basis that it was not properly witnessed?"

Ask the Professionals: Charles Hutton, a partner at Speechly Bircham and inheritance tax planning specialist, says: 

Under English law, a will must comply with certain requirements in order to be valid. One of these requirements is that the person making the will (the ‘testator’) must sign it or acknowledge his/her signature in the joint presence of two witnesses. Those witnesses must then each sign the will in the testator’s presence.

It appears that your mother’s will was signed by her but not witnessed properly. This means that the will is not valid. As such, unless there was an earlier unrevoked will, her estate will pass in accordance with the intestacy provisions.

Current legislation governing the distribution of an intestate estate, as well as provisions in force at the time of your mother’s death, can be found on the Office of Public Sector 
Information website.

Under the intestacy rules, the first slice of your mother’s estate will pass to your father.  As your mother died eight years ago, your father would be entitled to £125,000 (together with all of her personal property, such as jewellery and furniture).

Should the total value of your mother’s estate fall within this band, your father is entitled to her whole estate and there will be no surplus to distribute to her children or other relatives. If the estate exceeds that, half of the excess is held in trust for your father during his lifetime and then passes to the children on his death. The other half of the excess passes to the children on your mother’s death. 

There is no specific limitation period in relation to probate claims in 
circumstances such as this.  If the personal representatives have already distributed the estate, they will have to claw back sums paid out or pay such sums out of their own pockets.

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