What Makes a Will Invalid?

Author:
Nadia Rimmer
Solicitor, Advocate
Date:
29/09/2020

A Will can be invalid for a number of reasons which you may not be aware of as you’re writing it. This is why it’s always important to for a Solicitor to check the validity of your Will, so you know your family will be well taken care of when you die. It is also reduces the risk of your Will being contested in the future.

If you’d like legal advice about making a Will, get in touch with our Wills and Trusts Solicitors.

Call us on 08002605010 or request a callback and we will help you.

What Makes a Will Invalid?

In England and Wales, a Will can be invalid for any of the following reasons:

  1. Lack of Testamentary Capacity

If someone has Testamentary Capacity, it means they have the ability and mental capacity to understand the nature of making a Will. This includes at the time of writing the Will and when making any amends in the future.

By law, someone has Testamentary Capacity if they:

  • Understand the effects of making a Will
  • Understand the extent of the assets they’re giving away
  • Understand who they’re leaving their assets to

If it’s proven that someone lacked Testamentary Capacity when making their Will, then the Will won’t be legally valid. It can be helpful to get the opinion of a medical expert advisor if you’re unsure whether a loved one is of Testamentary Capacity when making their Will.

  1. Undue Influence

The person making the Will needs to do so voluntarily and the Will must outline what they actually want. Sadly, people can get coerced or forced by family members into writing a Will that doesn’t reflect their wishes.

If it’s found that someone has been unduly influenced into writing or amending their Will, then this makes the Will legally invalid. Always make sure that your Will sets out your decisions, and don’t let others try to influence you.

If you’re helping a loved one make their Will, make sure you’re aware of other family members who may be trying to coerce them into making a Will that greater benefits them. 

  1. Problems with Witnessing the Will 

To be legally valid, a Will need to be signed in the presence of two witnesses, and they must also sign the Will in front of the Testator (the person making the Will). 

If the Will is not witnessed at the time of signing, it’s not legally valid. In order to be a Witness you must be:

  • Over the age of 18
  • Of sound enough mind to know exactly what it is they’re witnessing and signing
  • Able to physically see the document i.e. they can’t be blind
  • Unrelated to you and any of your beneficiaries by blood or marriage

Because of Coronavirus restrictions, the UK Government recently introduced legislation that allows Wills to be witnessed via video conferencing.

  1. The Will is Not in Writing

    To be legally valid, a Will must be in writing, either handwritten or typed (printed).

How to Prove a Will is Valid? 

If the Will is in writing and has been clearly signed by appropriate witnesses, then this is a clear way of proving the validity around the signing of the Will.

But things like Testamentary Capacity and undue influence can be a little harder to prove. This is usually determined by looking at the medical reports of the person who died and gathering evidence from people who knew them.

Can I Change My Existing Will? 

People’s wishes change over time and you may want to adapt your Will to reflect these. But you can’t simply make handwritten changes to your existing Will, as this won’t be legally valid.

Instead, you need to make an official Will alteration called a Codicil. This needs to be signed and witnessed in the same way as your first Will to be legally valid.

There’s no limit to how many Codicils you can add to your Will, but it’s recommended that you review your Will every five years or so, and update it after big life events such as:

  • A new marriage or civil partnership
  • A divorce or separation
  • The birth of a child
  • A house move
  • If the named Executor in the Will dies

If you do make a new Will, you need to clearly state that all previous Wills and Codicils are being revoked. You should also destroy your previous Wills so these cannot be used again.

Legal Help to Make a Will 

It’s beneficial to get your Will looked at by an expert Wills Solicitor. They’ll make sure your Will is legally valid and offer you legal advice if you’re looking to change your Will.

For free legal advice call our Wills & Trusts Solicitors

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