Having 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 invalid.
If your Will is not considered valid, then your estate will pass under the terms of any existing and valid earlier Will that you might have, or otherwise under the Rules of Intestacy, which could mean that those whom you want to inherit will not receive what you want them to. It also increases the risk of a dispute arising between family members, who may have differing opinions as to what should happen to your estate.
What makes a Will invalid?
There are several ways in which a Will could be invalid, including the following:
1. The Will is not correctly signed and 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 witnesses should ideally be over 18 and of sound mind, and not blind. They should not be relatives or beneficiaries or married or related to beneficiaries.
The witnesses should both sign the Will in sight of each other and of the person making the Will, although new rules introduced during the pandemic have allowed Wills to be witnessed by video link.
2. The person making the Will lacks testamentary capacity
The person making the Will must understand the implications of making the Will, including the effect of the Will, the extent of their estate that is being left under the terms of the Will and to whom they are leaving their estate.
If an individual does not have sufficient understanding, their Will could be deemed 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.
3. The person making the Will has been subjected to undue influence
Someone making a Will should do so of their own free will and intention, without being coerced or unduly influenced. It can be difficult to identify undue influence, but 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 upon or influenced by the beneficiary, this could be a warning sign.
Where proved, if someone makes a Will under undue influence, the Will is invalid.
4. There is a problem with the Will itself
Where it is proved that a Will has been forged, it will be invalid. Similarly, if the Will has been damaged or there is evidence that it has been amended in some way after signing, this could lead to the Will being deemed invalid, or result in difficulties proving the Will when dealing with the administration of the estate after death.
Other issues
Other matters can cause difficulties, even if the whole of the Will is not invalid. For example, beneficiaries should not witness a Will as if they do, they will effectively forfeit their entitlement under the Will in doing so. Gifts to a former spouse will also fail, if not dealt with appropriately in the drafting of the Will.
These types of issues can mean that an estate will be partially or wholly intestate, meaning it will pass according to law rather than the terms of the Will.
If you have a Will already, it is sensible to review it to ensure that it is valid and that it is ‘up-to-date’ and still reflects your wishes. It is particularly important to ensure your Will has been validly drafted and executed if you did not take professional legal advice when making the Will.
Contact us
If you would like to speak to one of our expert Wills and Probate lawyers about reviewing or making a new Will, please call us on 01252 733 770 or email us at privateclient@baker-law.co.uk to make an appointment at our Farnham office.
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