What to do if you think a Will is 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 and codicil can be challenged if the strict legal requirements are not followed. DIY Wills are fraught with potential difficulty. The 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.
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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
Other grounds for challenge include:
- 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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Wills and Probate Team
Manzurul is a Member and heads our Wills and Probate team.
Martyn is our Chairman and the firms' Compliance Officer for Legal Practice