Validity Dilemma: Exploring factors that can make a Will invalid

A Will is crucial in ensuring your loved ones will be cared for in the future in the way that you want. However, it is easy to make an error in making or signing and witnessing a Will, meaning it could be considered invalid. Many situations render a Will invalid. By being aware of what these are, you can ensure that your own Will is sound. Be confident your estate passes to your choice of beneficiaries as you wish when the time comes. We take a look at what makes an invalid Will.

If a Will is found to be invalid after someone’s death or there is a question over its validity, it can result in a legal dispute. Contentious probate cases are notoriously difficult to resolve and often lengthy and expensive. The estate’s executors are bound to defend legal action against the estate, which could consequently drain it of funds.

An invalid will means your estate passes under the terms of any existing and valid earlier Will. Alternatively, if there is no will, the estate passes under the Rules of Intestacy.

The following are some ways in which a Will could be invalid:

  • The Will is incorrectly signed
  • The Will has not been properly witnessed
  • The person making the Will did not have the mental capacity to understand the implications
  • The person making the Will was subjected to undue influence or coercion by another
  • The Will has been altered or damaged
  • The Will is unclear or ambiguous
  • The Will is a forgery
  • The person making the Will did not approve the contents of the Will
  • The contents of the Will were not what the deceased intended to happen
  • The testator has married since making the Will
  • A later Will has been made, revoking all earlier Wills
Signing your Will and having it witnessed

The execution of a Will must be carried out properly or there is a risk that it could be invalid. Two witnesses need to sign as well as the person making the Will (the Testator). The witnesses must be over 18 and of sound mind, and not blind. They cannot be relatives or beneficiaries or married or related to beneficiaries, otherwise gifts to those beneficiaries will fail.

The witnesses sign the Will in sight of each other and of the person making the Will.

Mental capacity

To make a Will, you need to be aged 18 or older and have testamentary capacity. This means that you should be able to understand that you are making a Will. You understand the extent of the assets you own and the implications of the decisions you make about who will inherit your estate.

Where an individual does not have sufficient mental understanding, their Will is invalid. If there is likely to be any question over this in the future, it is recommended that a medical professional provide a letter confirming that they have talked to the person making the Will and found them to have sufficient capacity to do so.

Undue influence or coercion

Your Will should be made by you and on your instruction, free from undue influence or coercion from another person. It can be difficult to identify undue influence. Where someone has suddenly or unexpectedly changed their Will, included someone who wasn’t in the Will before or substantially changed the amount they are to receive and the person making the Will was reliant or influenced by the beneficiary, this could be a warning sign.

Undue influence or coercion may be suspected by family members if someone inherits unexpectedly. For example if a Will is suddenly changed in someone’s favour or an inheritance is left to someone who has recently become a strong presence in the testator’s life.

Undue influence means that the person making the Will has left gifts in their Will that they would not have made but for the undue influence. Where proved, undue influence will mean that a Will is invalid.

There is a problem with the Will itself

Where it is proved that a Will has been forged, it will be invalid, as well as where it has been damaged or amended.

Other issues

Other matters can cause difficulties, even if the whole of the Will is not invalid. For example, beneficiaries must not witness a Will and if they do, they will not be able to inherit. Gifts to a former spouse will also fail. These types of issues can mean that an estate is partially or wholly intestate or without an heir.

Ensuring your Will is valid

Having your Will drawn up by an expert can help ensure it is valid when the time comes. They ensure it is correctly drafted, signed and witnessed. They also discuss issues such as capacity and undue influence.

If a dispute arises in the future, they will have records of conversations they had and instructions they were given to support the making of the Will.

If you have a Will already, it is worth reviewing it. Firstly to ensure it is valid and secondly, that it is up to date.

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