Invalid Will: Causes, Consequences, and Resolution

What to do if you think a Will is invalid

What Makes a Will Invalid?

A Will can be challenged on several different grounds including a failure to follow the formalities needed to make a Will.

All Wills must comply with the Wills Act. A Will or any codicil can be challenged if the strict legal requirements are not followed. DIY Wills are fraught with potential difficulty. There are specific requirements for signing and witnessing Wills require the person making the Will and the two witnesses to be present in the same room when the document is signed. This may prove to be a particular issue in relation to will preparation during the COVID pandemic.

Legal Requirements for a Valid Last Will and Testament:

In order for a Will to be valid:

  • it must be in writing
  • it must be signed by the individual who made the Will, or by some other person in that individual’s presence and by their direction
  • the individual must sign the Will in the presence of at least two witnesses who are both present in the room with the individual at the same time
  • each of the witnesses must then attest or sign the Will in the presence of the individual who made the Will, but not necessarily in the presence of each other
  • each of the witnesses must be over the age of 18, independent, and must not benefit from the Will

Key Factors That Can Render a Will Invalid

There are some key factors that can render a Will invalid:

  • the person who made the Will was not of sound mind at the time – they did not have capacity to make a Will
  • the person did not know or approve the contents of the Will
  • the Will was made as a result of undue pressure from a third party
  • the Will was forged or fraudulent

The person making the Will must also have the capacity to make it, which means they must be over 18 (unless in the armed forces) and have the mental capacity to make it. They must be able to understand the extent of their estate and they must be aware of the people who they would usually be expected to provide for (even if they choose not to). They must also be free from any delusion of the mind that would cause them reason not to benefit those people.

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Contesting an Invalid Will

If you suspect that it may not be valid, you can contest it on the grounds of its validity.

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Consequences of an Invalid Will 

If a Will is found to be invalid, then the estate would be distributed according to the previous valid Will. If there wasn't a previous Will, then the estate would be distributed as if the deceased had never made a Will (intestacy).

Steps to Take Before Forfeiting a Commercial Lease

Who Can Witness a Will? 

The witness of a Will must be an independent adult who isn’t related to the person making the Will (the testator) and has no personal interest in the Will. You can not be a witness if you are the spouse or civil partner of the testor. A neighbour or family friend is usually best.

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Common Reasons for Will Invalidity

A challenge to a Will will usually fall into one of five categories

  • Lack of testamentary capacity.

The person who made the Will (known as the 'testator') must have testamentary capacity at the time they sign the Will. A person who is not of sound mind at the time of writing their will may lack capacity. The test for testamentary capacity have four elements, each of which must be satisfied.

  • Lack of valid execution.

A Will must be signed by the deceased  in the presence of two witnesses who also need to sign the Will. If any of those three people have not signed the Will, it is invalid. The testator signed the Will with the intent of making it official.

  • Lack of knowledge and approval.

If the person making the Will wasn’t aware of its contents, this is called lack of knowledge and approval. There may be suspicious circumstances, such as a large gift to the person who helped them prepare the Will.

  • Undue influence.

When someone pressures or coerces the testator to write a Will or change an existing one, this is called undue influence.

For a successful challenge you must show ‘actual undue influence’. The Court requires a high standard of evidence for claims of undue influence and you will need to prove there is no other reasonable explanation for the terms of the Will.

  • Fraud or forgery

If a Will has been forged or is the result of fraud, it will be invalid. This is more common than you would think.

Frequently asked questions

Obtaining information about the drafting of the Will is key, particularly when you're trying to understand why the Will is written in the way it is. Normally the instructions given to the Will writer are confidential, but there are exceptions and you can usually get a copy of the Will writer’s file. They may charge a small fee for releasing it to you but it's the most important evidence as it confirms what was said at the time the Will was made.

A Will could be invalid, if at the time of signing, the person was subject to undue Influence. That may arise when a carer or loved one has taken control of somebody's life and then becomes a major beneficiary under the Will.

The court has a power to rectify a mistake in a Will where there's been a failure to understand the testator’s wishes or a clerical error by the person preparing the Will.

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