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What Makes a Will Invalid?

24th August 2017

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 the mental capacity of the Testator (the person who wrote the Will.)

Either way, if your Will is found to be invalid after your death, it could have serious implications for your beneficiaries which can cost thousands of pounds to resolve. So it’s best to get professional help when making a Will, as this will significantly reduce the risk of mistakes being made.

For advice about making a Will call the Co-op Will writers on 03306069591 or contact us online and we will help you.

Below we explain some common reasons why a Will might be found invalid.

Testamentary Capacity

In England and Wales, anyone is allowed to make a Will, as long as you:

  • Are aged 18 or over
  • Have testamentary capacity

Having ‘testamentary capacity’ means that when you make 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.

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, and so 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 capacity could be called into doubt 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 the 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.

Will Signed 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 must be over the age of 18
  • Your witnesses must be independent – meaning not one of your beneficiaries, or related/married to one of your beneficiaries
  • You must sign the Will while your witnesses are watching
  • Your witnesses must sign the Will while you are watching

If your Will isn’t witnesses properly (or at all), it can be considered invalid. 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.

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.

Additionally, there are occasions when your Will is ‘revoked’, whereby it is effectively cancelled. This can happen when:

  • You get married (unless there is a clause in the Will that anticipates your forthcoming marriage)
  • You intentionally destroy the Will
  • You make a new Will, which 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.

For initial advice and guidance call Co-op Legal Services on 03306069591 or contact us online and we will call you.

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