What happens when a Will is not valid?

The rules surrounding making and signing a Will are strict.  When mistakes are made, a Will could be deemed invalid. We look at what happens when a Will is not valid after someone has died and their Will cannot be used.

Having a Will professionally drafted is the best way to avoid any issues arising in the future. If a Will is found to be invalid or those left behind have concerns over validity, there is a risk that a family dispute could occur. As well as damaging family relationships, this could drain the estate of funds if a legal claim is made and severely delay the distribution of the funds.

When is a Will invalid?

To be legally valid, a Will must be:

• In writing
• Signed by the person making the Will, known as the testator, or by someone at the testator’s direction
• Witnessed by two witnesses who sign and add their name and occupation

A Will can be invalid in the following circumstances:

• Fraud or forgery is involved
• The deceased lacked the mental capacity to make a Will
• The deceased did not have full knowledge or approval of the contents of the Will
• The Will was incorrectly signed or executed
• The testator was unduly influenced into making the Will in the terms that they did

What happens if a Will is invalid?

If the court declares that a Will is invalid, then if a previous valid Will exists, that Will takes effect instead.

Where there is no previous valid Will, the estate will be deemed intestate. In that case, the rules of intestacy will apply.  These dictate who is entitled to inherit. If the deceased left a spouse and children, then the spouse inherits all of the deceased’s personal possessions plus the first £322,000 of the net estate. The remainder of the estate is split into two. The spouse inherits one half, and the children share the other half equally. Often, this means the spouse inherits substantially more than the children.

If the deceased remarried, this can cause problems.  There is a risk that the new spouse could leave the money to their own children in due course.  Therefore, meaning that the deceased’s children could miss out on receiving the majority of their inheritance.

Co-habiting partners and stepchildren do not inherit anything under the rules of intestacy. If they believe they need financial support, they will need to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975. It can be expensive for an estate to deal with legal claims, particularly if there is a lengthy dispute.

For this reason, it is important to ensure your Will is up to date.  Review your will every 3-5 years, or in the event of any major life changes, such as divorce, marriage or the birth of a child or grandchild.

How to avoid an invalid Will

An experienced Will writer will ensure that your Will is correctly drafted, signed and executed.  They will provide advice on issues such as Inheritance Tax, sideways disinheritance, supporting a blended family and leaving someone out of your Will.

Where there could be questions over mental capacity, the Will writer will ensure that appropriate safeguards are in place. You must have a new Will made if you marry. 

Marriage automatically invalidates a Will unless it is made in contemplation of the marriage.

Contact Us

If you are looking to make a Will or any associated estate planning to plan for your future please call us FREE on 0800 781 6658 or email us at enquiries@estplan.co.uk