Invalid wills
A will must meet certain legal requirements to be valid. If a will is not properly executed, was made under undue influence, or the testator lacked mental capacity, it may be challenged.
Contact our teamA will may be considered invalid on various bases, including non-compliance with essential formalities required for its creation.
It is imperative that all wills adhere to the stipulations of the Wills Act 1837, to minimise the chances of a will being found invalid at a later date. Wills crafted through DIY methods often encounter numerous potential complications. The detailed stipulations for the signing and witnessing of wills mandate, amongst other requirements, that the testator and two witnesses be concurrently present in the same room during the signing of the document.
If your will is deemed invalid after your death, it can lead to significant complications for your beneficiaries and costly legal disputes. Seeking professional legal advice when drafting your will ensures it meets all legal requirements, reducing the risk of errors and protecting your wishes from being challenged.
Do wills become invalid?
Wills do not inherently become invalid over time, but certain circumstances can cause a will to be invalidated. For example, if a newer, valid will is discovered, it supersedes previous versions. Additionally, marriages and divorces can impact the validity of a will, depending on the circumstances, if the will was not updated after the change in family circumstances or not carefully drafted in anticipation of such events.
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What makes a will valid?
For a will to be deemed valid in the United Kingdom, it must comply with certain criteria, as dictated by the Wills Act of 1837. Here are the principal requisites:
Testator’s age and capacity
For a will to be legally valid, the testator—the person making the will—must be at least 18 years old in England and Wales. This ensures that the individual has reached the age of majority and is legally capable of making decisions regarding their estate.
Additionally, the testator must have the mental capacity to create a will. This means they must understand the nature and consequences of making a will, the extent of their assets, and any potential claims against their estate. If there are concerns about a testator’s capacity, such as in cases of dementia or cognitive impairment, medical evidence may be required to confirm they were of sound mind at the time the will was made. If a will is created by someone lacking testamentary capacity, it may be challenged and deemed invalid.
Writing and signature
A valid will must be in writing, whether handwritten, typed, or printed. Verbal or oral wills are not legally recognised in England and Wales, except in limited cases such as privileged wills made by members of the armed forces in active service.
The testator must sign the will themselves or, if they are unable to do so, direct someone else to sign on their behalf while in their presence. The signature must be made with the intention of executing the will, ensuring that it accurately reflects their wishes. Additionally, the testator’s signature must be either made or acknowledged in the presence of at least two witnesses, who must be present at the same time. Any failure to meet these requirements could result in the will being declared invalid.
Witnesses
To ensure the validity of a will, at least two independent witnesses must be present at the time of signing. These witnesses must also sign the will in the presence of the testator, confirming they have seen the testator sign or acknowledge their signature.
Witnesses must be over the age of 18 and should have no personal interest in the will. If a witness (or their spouse or civil partner) is also a beneficiary, they risk losing their inheritance, as gifts made to a witness are generally deemed invalid. However, the will itself would still remain valid. Ensuring that witnesses are independent and impartial helps to avoid potential disputes over the legitimacy of the will.
Intention
For a will to be legally binding, the testator must have clear intention to create it. By signing the will, they are confirming that they intend for it to take legal effect as their final wishes regarding the distribution of their estate. If there is any suggestion that the testator signed the will under duress, misunderstanding, or without full comprehension of its implications, the will could be challenged. Establishing intent is crucial in preventing disputes over the validity of a will.
Volition
A will must be made voluntarily, without any undue influence, coercion, or pressure from others. If a testator has been manipulated or forced into making specific provisions in their will, it may be challenged in court and declared invalid. Undue influence can be particularly relevant in cases involving vulnerable individuals, such as elderly testators or those dependent on others for care. To avoid issues of undue influence, it is advisable for the testator to seek independent legal advice when drafting their will.
Revocation of previous wills
In most cases, when a testator creates a new will, it automatically revokes all previous wills unless explicitly stated otherwise. This ensures that only the most recent document reflects their final wishes. If a person wishes to retain parts of an earlier will, they must include clear wording to confirm which sections remain valid.
Revocation can also occur through physical destruction, such as tearing up or burning a will with the intent to cancel it. If a previous will is accidentally destroyed or misplaced, it may still be valid unless a new will has been created. Ensuring that a new will is properly drafted and executed is essential in preventing confusion or unintended disputes over inheritance.
Additional issues like dealing with international assets or changes in circumstances (such as marriage or divorce) may also influence the validity of a will, and specialist advice might be warranted in such instances.
These principles provide a general guideline, but making a will can involve complexities where legal advice would be pertinent to ensure all stipulations are satisfied and the will is robust against potential challenges.
Contact Moore Barlow to discuss potentially invalid wills with our dedicated Private Wealth Disputes team.
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Other grounds to challenge a will
Contesting a will can be based on several grounds other than invalidity. Here are some of the key reasons in simple bullet points:
- Lack of testamentary capacity: The testator did not have the mental capacity to understand the will when it was created.
- Undue influence: The testator was coerced or influenced unduly when making the will.
- Fraud or forgery: The will is not genuine, or the testator’s signature has been forged.
- Rectification and construction claims: The will does not reflect the testator’s actual intentions due to clerical errors or ambiguous language.
- Moral obligation: In some jurisdictions, a claim can be made if the will does not make reasonable provision for certain family members or dependents.
- Validity of the document: The document itself is unclear, inconsistent, or invalid for some other reason.
- Revocation: The will was revoked by the testator before their death.
Each of these points could encompass a range of more detailed issues, and the specific circumstances would need to be considered to challenge a will effectively. Legal advice is typically essential in such cases to navigate through the various regulations and requirements.
Who decides if a will is invalid?
The validity of a will is ultimately determined by the court, particularly if there are disputes or challenges regarding its legitimacy. Legal professionals can provide initial guidance, but formal adjudication rests with a court if the matter cannot be resolved through mediation.
What happens if a will is declared invalid?
If a will is declared invalid in the UK, the estate is usually distributed according to the rules of intestacy, meaning assets are allocated in a predefined order to the deceased’s next of kin. Alternatively, if an earlier valid will exists and is locatable then this may be used. This can significantly differ from the original intentions expressed in the invalidated will.
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