What Makes a Will Invalid?

14 February 2020

There are a number of things that can make a Will invalid. Sometimes this will be nothing more than a simple mistake, whereas other times more contentious (disputable) issues will be at play – such as whether the person who wrote the Will had sufficient mental capacity to do so.

Either way, if your Will is found to be invalid after your death, it could have serious implications for your beneficiaries and could cost thousands of pounds to resolve. It's best to get professional help when writing a Will, as this significantly reduces the risk of mistakes being made and your Will being found to be invalid after your death.

Below we explain some of the most common reasons why your Will could be found invalid after you die.

Testamentary Capacity

In England and Wales, you are allowed to make a Will providing you:

  • Are aged 18 or over
  • Have testamentary capacity

Having ‘testamentary capacity’ means that at the time of making your Will, you must be able to understand:

  • That your beneficiaries will receive your assets
  • The extent of your ‘Estate’ (meaning everything you own)
  • The implications of including/excluding certain people as beneficiaries
  • Your actions and not being influenced into making decisions

If you are found to have lacked testamentary capacity when you made your Will, your Will could be deemed invalid.

Could Your Will Be Challenged?

It is also possible that someone (or a group of people) will challenge your Will after your death. Typically those bringing a claim will have been excluded from the Will or feel they were entitled to a more generous inheritance. They may argue that you didn't understand the implications of your actions when you made your Will.

Proving that a person lacked testamentary capacity at the time the Will was written can be difficult, especially when the Testator has since passed away. But it is possible. Commonly it is argued that the Testator lacked testamentary capacity due to old age, an illness such as dementia or Alzheimer's, or due to the effects of medication.

If you are making a Will and you're concerned that your testamentary capacity could be called into question after your death, you should ask a medical practitioner to be one of the witnesses to your Will. This will confirm that a medical professional believed you to have testamentary capacity when you signed your Will, which will help to uphold the validity of your Will.

Unduly Influenced

When making a Will, you must do so voluntarily. This means that you, and only you, must decide what to put in your Will. Others are not allowed to manipulate the contents of your Will by exerting physical, verbal or emotional power over you.

If you are found to have been unduly influenced when making your Will, it could be deemed invalid. If you are concerned about this, you should get independent legal advice.

Sign Your Will in front of Witnesses

You must sign your Will in the presence of two independent witnesses. These two witnesses must then also sign the Will in your presence.

This is one of those areas where mistakes are often made, as there are certain rules around signing a Will that you need to follow. For example:

  • Your witnesses preferably should be over the age of 18 (although legally they don't have to be), they must be of sound mind and, for obvious reasons, must not be blind.
  • Your witnesses must be independent – meaning not one of your beneficiaries and not related to you or your beneficiaries either by blood or marriage
  • You must sign the Will while both your witnesses are watching
  • Your witnesses must sign the Will while you are watching

If your Will isn't witnessed properly (or at all), it will be considered invalid. You should not ask any of your Beneficiaries to witness your Will. If it is found that one of your witnesses is set to benefit from your Estate under the terms of the Will, that particular gift will fail, but the rest of the Will remains valid.

During the coronavirus pandemic, the Government introduced leglislation that makes it legal to have a Will witnessed via video link if needed. Previously a Will would only be valid if the witnesses were both present at the time of the Will being signed. For more information, see How to Video-Witness a Will.

Other Considerations

There are other reasons why a Will can be found invalid. For instance, it might be possible to prove that a Will was forged, which would invalidate the Will.

Additionally, there are occasions when your Will is 'revoked' meaning it is effectively cancelled. This can happen when:

  • You get married (unless there is a clause in the existing Will that anticipates your forthcoming marriage)
  • You intentionally destroy the existing Will
  • You make a new Will which, if properly drafted with an express revocation clause, will revoke any previous Wills
  • You make a written declaration stating that you wish to revoke your Will

At Co-op Legal Services we offer fixed fee Wills and once we have provided you with a written quote for the agreed work, that price will not change.

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