Making a Will is one of those tasks that often gets overlooked, however the importance of having a Will is clear. Without a Will, your assets will be distributed following the rules of intestacy which might mean that your assets are passed to someone who you may not have chosen. However, whilst having a Will is important, having a valid Will is paramount!
In this Blog we will focus on what happens if it is discovered that your Will is invalid and most importantly, what you can do now to prevent that from being the case.
What is the criteria for a Will to be valid?
- It must be in writing.
- It must be signed by the Testator (the person making the Will) or by another person at the direction of the Testator and in their presence. The Will must be signed with the intention that the signature gives effect to the Will.
- The Will must be signed in the presence of two witnesses who are both present at the same time.
- Each Witness must sign the Will in the presence of the Testator, but not necessary in the presence of each other.
- The Witnesses must be over the age of 18 and not benefit from the Will.
How should a Will be witnessed in order for it to be valid?
To protect you and your beneficiaries there are some strict rules that must be followed to ensure that your Will is witnessed correctly and failure to follow these rules will result in your Will being deemed invalid. These rules are as follows.
- You must sign your Will in the presence of two independent witnesses and then the two witnesses must sign the Will in your presence;
- The witness must be over the age of 18, independent, and not a beneficiary under the Will, or related to one of the beneficiaries;
- You must sign the Will whilst both witnesses are watching and your witnesses must sign the Will while you are watching;
- If the Will is not witnessed, or it is witnessed incorrectly, it will be considered invalid.
During the Coronavirus pandemic new legislation was introduced allowing for a Will to be witnessed via video link if necessary. It is best to have your Will witnessed by professionals such as solicitors to ensure the Will is witnessed properly.
What is Testamentary Capacity?
In England and Wales you are able to make a Will as long as you are over the age of 18 and have testamentary capacity. This means that at the time of making your Will you:
- Understand the nature and effect of the Will, including the impact on the beneficiaries;
- Understand the nature and extent of the estate and what assets you are gifting in the Will;
- Understand the implications of including or excluding certain people as beneficiaries and the potential for claims to be brought against the estate;
- Not have a disorder of the mind which affects their capacity.
In certain circumstances, if there is concern that testamentary capacity could be questioned after your death, an assessment of capacity can be obtained and report prepared confirming your testamentary capacity, which could go towards defending a claim. You could also request a medical professional to be one of the witnesses when the Will is signed, which could help uphold the validity of the Will. Some examples of where the validity of a Will can be challenged are:
Lack of knowledge and approval
If the person making the Will was not aware of its content, did not understand the content, did not understand the extent of their estate or who would benefit from it and therefore did not understand the effect of their Will this is known as lack of knowledge and approval. There could be suspicion for example about a large gift to a person who helped with the preparation of the Will.
Undue Influence
When the Testator has been pressured or coerced into making a Will, or changing an existing Will this is known as undue influence. For a challenge to be successful the court requires a high standard of evidence. Actual undue influence would need to be shown and proof 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 then it will be invalid.
Getting married
It is important to note that if you marry after making a Will the Will is automatically revoked (cancelled) by that marriage, unless the Will has been made in anticipation of marriage and there is an appropriate contemplation of marriage clause included in the Will.
Losing a Will
The storage of your Will is an important consideration. If you store your own original and it is lost, there is an assumption at law that the person who made the Will destroyed it. This is why is it important to ensure that your Will is stored with solicitors.
What are the consequences of an invalid Will?
If the last Will made is not valid then it will be the previous valid Will that would stand, and the estate would be distributed in accordance with the terms of that Will.
If there is no previously prepared valid Will then the estate would be dealt under the rules of intestacy, as if no Will was ever made.
If your Will is found to be invalid after your death it could have serious consequences for your chosen beneficiaries and could be extremely costly to resolve.
It is extremely important to seek professional legal advice when preparing your Will, to significantly reduce the risk of mistakes being made, and to ensure that the Will achieves your intentions.
Blog: The Dangers of Unregulated Will Writing Services
When obtaining and paying for legal documents and services, it can seem to many as an unnecessary expense. Also, with the advent of online “quick wills” and standard pre-printed packs, many question why they should go to the expense of instructing a Solicitor.
A blog by Amanda Gait, Partner and Head of Residential Property
What can I do to ensure my Will is valid?
It is advisable to always seek professional advice when making a Will. A solicitor who is trained and has experience in making Wills will be able to ensure that your wishes are correctly documented. As regulated and qualitied professionals with many years of experience, we are here to assist you in making sure that your wishes are met.
The Rules of Intestacy determine how a person’s estate is distributed if they die without a valid will. Under these rules, only spouses, civil partners, and close relatives (children, grandchildren, parents, and siblings) can inherit. Unmarried partners and friends are not entitled to anything. The specific distribution depends on the size of the estate and the surviving relatives.
A will must be witnessed by two independent adults who are present when the will is signed. Witnesses must not be beneficiaries or the spouse/civil partner of a beneficiary; otherwise, they forfeit their inheritance under the will. The witnesses must be over 18 and of sound mind.
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The content of this blog post is for information only and does not constitute formal legal advice and should not be relied upon as advice. Thornton Jones Solicitors Limited accepts no liability for any such reliance upon this content. Where the post includes links to external websites, Thornton Jones Solicitors Limited accepts no responsibility for the content of such sites. Any link to a third-party website should not be construed as endorsement by Thornton Jones Solicitors Limited of any content, products or services which are outside our direct control.
