Whether you are creating a will for yourself, or helping a loved one to draw up their will, you’ll want to get it right.
There are a variety of factors that can make a will invalid, so it’s important to ensure they cannot be challenged. An invalid will can mean your wishes are not carried out and your loved ones could suffer financially.
Keep reading to understand the different reasons why a will may be ruled as invalid and what you can do to ensure your will is valid.
In this article we cover:
The main reasons for an invalid will
Steps you can take if you think a will is invalid
What you can do to guard against making an invalid will
Reasons for an invalid will
There are many reasons why a will might not be valid which is why it’s important to be vigilant and be sure you fully understand the legal process when creating a will.
A will may be invalid in the following circumstances:
Not made in writing
A will must be written (handwritten or typed). Otherwise, an executor cannot bring the will into effect. A will in any other form can be challenged.
A written will is necessary because it can help avoid fraud and ensure the writer follows the correct process of declaiming the document as their final wishes. As a will is a legal document, it’s also worth noting that it’s advisable to seek legal support to draft the document. Otherwise, the possibility of your wishes being challenged could be higher.
What does challenging a will mean?
Challenging or contesting a will usually happens when someone who isn’t included in the will believes they should have been.
The following people may challenge a will:
Beneficiaries (those named in the will)
Family not included in the will
Heirs
Anyone that was a beneficiary of a previous will
Spouses
Unwitnessed wills
Wills must be witnessed by two people in addition to the person signing it. In total, your own will is signed by yourself and two witnesses. This means you must be in the same room as your witnesses when you sign your will. Witnesses must also be independent - they cannot be part of your inheritance.
This is important because if a will is challenged, the witnesses are called on to make a statement. A witness doesn’t need to read a will, they only need to be in the same room when the document is signed. This makes the process of finding a witness easier.
Ensure you know exactly who can witness a will to ensure its validity.
If you do not follow these rules, your will may be invalid.
Lacking capacity
‘Of sound mind and body’ - a phrase that may have been ingrained in our collective consciousnesses from TV courtroom dramas. The connection here is that under the law, a will writer must have testamentary capacity to write their will. This simply means that they have the ability to write and understand the contents of their will themselves.
When the capacity of the will maker is challenged, the way a will’s assets are divided will be reassessed.
Many use their GP as a witness to their will to counteract the possibility that people will question their testamentary capacity, and that they knew what they were doing when they drafted the document.
Under duress
When a person is under duress, it means threats have been made against them to force them to do something.
The law says you must write your will and decide on its contents by yourself, of your own free will. It is against the law if someone tries to influence your will.
Types of duress:
Threats of violence
Physical abuse
Emotional abuse
If you are concerned your will or a loved ones will was made under duress it is important to seek legal support as it can be a grey area. This is especially true if you think a loved one has unduly influenced your will and you want to change it.
Forged will
A will might be photocopied, or altered by a malicious party, both of which would make a will invalid.
There are legitimate reasons for making a copy of your will, such as record keeping, but be sure not to send a photocopy through legal channels.
In terms of altering a will, someone might change a name to benefit themselves, or someone they have a connection with. Be careful, even a something as small as a different font or pen stroke could be enough for suspicions of forgery to be raised.
If forgery is suspected, the entire contents of a will can be questioned.
What to do if you suspect a will may be invalid
You might be the beneficiary of a will and notice some discrepancy with the contents of the will and what the will writer told you. In this case you might want to contest it.
You can contest a will on the basis of its validity. However, a will cannot be totally rewritten after death.
You can:
Contact legal support, specifically will dispute lawyers
Consider mediation with the other parties involved
Prepare your evidence to make a case
Contact witnesses to create statements that argue that the will maker was not of sound mind
Decide between settling out of court or pursuing legal action to reach an agreement acceptable to you
You can also start a process of rectification: this is a legal process when an error is corrected in a will that does not follow the writer’s wishes. This legal recourse is set out in The Administration of Justice Act 1982. To correct a will, the court has to be satisfied that the contents of the will don’t reflect the wishes of the will maker.
If the court grants an application for rectification, the estate will be distributed as if the will maker’s original wishes (as the court deems them) were included in the original will.
You might also choose to bring a claim for negligence against a solicitor. You could decide to do this if you believe a solicitor has created a poorly drafted will, delayed the creation of a will or given the wrong advice on probate or tax.
Also, if a valid earlier will exists, the courts may decide to revert to this one.
How to avoid making an invalid will
If you or a loved one is in the process of creating a will, this is a crucial time. It is within your power to ensure that the will that is being drafted has a low chance of being contested, and if it is, won’t be found invalid.
Top tips in producing a valid will:
1. Firstly, a valid will must be made by someone over the age of 18. So, if a young person needs to make a will, they should wait until they are legally an adult if they are able or seek legal advice.
2. You’ll also want to make sure your will is in writing and that no mistakes have been made, either in the legal wording of the document or that might call into question the validity of the will.
3. To be comfortable that your last wishes are met you may consider seeking the support of a will writing expert. A solicitor can help ensure your wishes are legally binding and won’t be overturned when you’re gone.
Getting legal support is not a requirement, however it is advisable as writing a will can be very complex. It may be you’re cohabiting with someone that is not your legal partner by marriage or civil partnership, or your financial arrangements are extremely complex. In these cases, legal support can prove very helpful.
It’s also worth noting that if you get divorced and then remarried, your will is automatically revoked. If you’re planning on getting remarried, get in touch and we can help draft you a new will.
If you get divorced, your will remains valid, however the status of your ex-partner will change and they’ll no longer be the executor of your will. If you have named other executors, they will still have that duty.
Finally, there are some things you should never include in your will.
Are you writing or contesting a will? We can help
If you need any help with making a valid will or contesting a will, you can find the UK’s best solicitors and lawyers for fixed fees at Lawhive. To get started, request a free case assessment and no obligation quote today to see how we can help.