Invalid wills
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Contact our teamA will may be contested 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 them 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 that the testator and two witnesses be concurrently present in the same room during the signing of the document.
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.
Alterations, lack of witnesses, or evidence of undue influence or lack of mental capacity when the will was created can also challenge its validity.
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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
- The testator must be at least 18 years old.
- They should be of sound mind, possessing the mental capacity to understand the nature and effect of making a will.
Writing and signature
- The will must be in writing.
- The testator must sign the will or have someone else sign it in their presence, following their direction.
- The testator’s signature must be made or acknowledged in the presence of two or more witnesses, present at the same time.
Witnesses
- There must be at least two witnesses, who also need to sign the will in the testator’s presence.
- Witnesses (or their spouses/civil partners) should not be beneficiaries or the will could be rendered invalid.
Intention
- The testator must intend by their signature to give effect to the will.
Volition
- The will must be made voluntarily and without undue influence from others.
Revocation of previous wills
- Generally, the most recent will supersedes all previous versions unless otherwise stated.
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.
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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. This can significantly differ from the original intentions expressed in the invalidated will.
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