A Will is crucial in ensuring your loved ones will be cared for in the future in the way that you want. However, it is easy to make an error in making or signing and witnessing a Will, meaning it could be invalid.

If your Will is not considered valid, then your estate will pass under the terms of any existing and valid earlier Will or otherwise under the Rules of Intestacy, which might mean that those whom you want to inherit miss out. It also increases the risk of a dispute arising between family members, who may have differing opinions as to what should happen to your estate.

What makes a Will invalid?

There are several ways in which a Will could be invalid, including the following:

The Will is not correctly signed and witnessed

The execution of a Will must be carried out properly or there is a risk that it could be invalid. Two witnesses need to sign as well as the person making the Will. The witnesses should ideally be over 18 and of sound mind, and not blind. They should not be relatives or beneficiaries or married or related to beneficiaries.

The witnesses should both sign the Will in sight of each other and of the person making the Will, although new rules introduced during the pandemic have allowed Wills to be witnessed by video link.

The person making the Will lacks testamentary capacity

The person making the Will must understand the implications of making the Will, to include the effect of the Will, the extent of their estate that is being left under the terms of the Will and to whom they are leaving their estate.

Where an individual does not have sufficient mental understanding, their Will is invalid. If there is likely to be any question over this in the future, it is recommended that a medical professional provide a letter confirming that they have talked to the person making the Will and found them to have sufficient capacity to do so.

The person making the Will has been subjected to undue influence

Someone making a Will should do so without being coerced or unduly influenced. It can be difficult to identify undue influence, but where someone has suddenly or unexpectedly changed their Will, included someone who wasn’t in the Will before or substantially changed the amount they are to receive and the person making the Will was reliant or influenced by the beneficiary, this could be a warning sign.

Undue influence means that the person making the Will has left gifts in their Will that they would not have made but for the undue influence. Where proved, undue influence will mean that a Will is invalid.

There is a problem with the Will itself

Where it is proved that a Will has been forged, it will be invalid, as well as where it has been damaged or amended.

Other issues

Other matters can cause difficulties, even if the whole of the Will is not invalid. For example, beneficiaries must not witness a Will and if they do, they will not be able to inherit. Gifts to a former spouse will also fail. These types of issues can mean that an estate is partially or wholly intestate or without an heir.

If you have a Will already, it is worth reviewing it to ensure that firstly, it is valid and secondly, that it is up to date.

Speak to Karen Miller

Karen is a Partner at Wollens and can advise you. Contact Karen via email Karen.Miller@wollens.co.uk or call 01271 340493.

Karen Miller - Wollens Solicitors Devon

You can also complete an online enquiry form. One of the Wollens team will contact you as soon as they are available.

Related News & Insights

4 minute read
What happens on completion day? - Wollens Solicitors Devon

What happens on completion day?

Read Article
6 minute read
Update for landlords on assets of potential community value - a new right to buy - Wollens Solicitors Devon

Update for landlords on assets of potential community value – a new right to buy

Read Article
3 minute read
Child Relocation: Do I Need Permission to Move Within England and Wales? - Wollens Solicitors Devon

Child Relocation: Do I Need Permission to Move Within England and Wales?

Read Article
5 minute read
‘Money grief’ in divorce - Wollens Solicitors Devon

‘Money grief’ in divorce

Read Article
6 minute read
Are you a Residential Long Leaseholder thinking about Extending your Lease? - Wollens Solicitors Devon

Are you a Residential Long Leaseholder thinking about Extending your Lease?

Read Article
6 minute read
When to use a freezing injunction in a business dispute - Wollens Solicitors Devon

When to use a freezing injunction in a business dispute

Read Article
7 minute read
Dealing with the results of a disappointing survey - Wollens Solicitors Devon

Dealing with the results of a disappointing survey

Read Article
4 minute read
Buying a plot, parcel or paddock - Wollens Solicitors Devon

Buying a plot, parcel or paddock

Read Article