Most people will not even realise if there will is legally binding or not. Here’s 5 reasons your will may be invalid.

Many people don’t consider the value of writing a will when making future plans. In this blog we give you 5 reasons your will may be invalid. Having a will clarifies how your property and possessions will be dispersed after your passing. It’s an essential step in making sure your desires are carried out and your loved ones are taken care of. But do you know if your will is valid?

A will may be declared invalid in the UK for a number of different reasons. Here are 5 reasons your will may be invalid:

[1] Inability to make a will

A person needs to be mentally capable of doing so. They must be able to comprehend both the nature and implications of the instrument they are signing as well as the scope of the property they are giving up. The validity of a will may be questioned if the maker was not mentally competent when they signed it. There are several reasons why a person may have the inability to make a will.

Some common examples include:

Lack of capacity: A person must have sufficient mental capacity to make a valid will. This means they must understand the nature and effect of making a will, the extent of their property and assets, and the people who might reasonably be expected to benefit from their estate. If a person lacks capacity, they may not be able to make a will.

Marriage, civil partnership or divorce: The act of marriage, civil partnership or divorce can affect the validity of a will. For example, if a person gets married or enters into a civil partnership, their existing will may be automatically revoked unless it was made in contemplation of the marriage or partnership. Similarly, a divorce can invalidate provisions in a will that relate to the ex-spouse.

Legal incapacity: Some people may have a legal incapacity to make a will. For example, if a person is under 18 years old, they are not legally able to make a will.

If a person is unable to make a will, their estate will be distributed according to the rules of intestacy. These rules set out a strict order of priority for who inherits the deceased’s estate, based on their relationship to the deceased. If the deceased has no surviving relatives, their estate will pass to the Crown (known as bona vacantia).

If you are unsure whether a person is able to make a will or whether a will is valid, it is important to seek legal advice as soon as possible. A solicitor with experience in wills and probate can help you to understand the legal issues involved and advise you on the best course of action.

[2] Undue influence

If a person is coerced or unduly influenced by another person into making a will that does not reflect their true wishes, the will may be invalid. This can occur when a person in a position of trust or authority over the testator exerts pressure on them to make certain provisions in their will.

Undue influence is a legal concept that refers to situations where a person has been coerced or manipulated into making a decision that they would not have otherwise made. In the context of wills, undue influence can occur when someone uses their position of power or influence over the testator (the person making the will) to persuade them to include certain provisions in their will or to exclude certain beneficiaries.

If a person makes a will based on undue influence, the will may be contested by those who have been adversely affected by its provisions. To contest a will based on undue influence, it is necessary to provide evidence that the testator was coerced or manipulated into making decisions that they would not have made if they had been acting freely and independently.

In order to establish undue influence, it is necessary to demonstrate that the influencer had a relationship of trust and confidence with the testator and that they used this relationship to exert undue pressure on the testator. Factors that may be taken into account include the influencer’s age, physical or mental condition, the nature of the relationship between the influencer and the testator, the timing of the will, and the presence of any other suspicious circumstances.

If a will is found to have been made under undue influence, the court may declare it invalid and set it aside. Alternatively, the court may order that the will be varied to reflect the testator’s true wishes. In either case, the estate will be distributed according to the rules of intestacy, unless there is another valid will in existence.

It is worth noting that proving undue influence can be difficult, as it often involves demonstrating the subjective state of mind of the testator. If you suspect that a will has been made under undue influence, it is advisable to seek legal advice as soon as possible. A lawyer with experience in contentious probate cases can help you to navigate the legal process and maximize your chances of success.

[3] Inadequate execution

In order for a will to be enforceable, it must be properly executed. For instance, two witnesses must be present when the testator signs the will, and they must attest to the testator’s signature on the document. If these requirements are not met, the will may be declared invalid.

Inadequate execution refers to situations where a will is not executed in accordance with the formalities required by law for the will to be considered valid. In the UK, the formalities for executing a valid will are set out in the Wills Act 1837.

The formalities required for executing a valid will are as follows:

  1. The will must be in writing. Oral wills are not valid in the UK.
  2. The testator (the person making the will) must sign the will or acknowledge their signature in the presence of two witnesses.
  3. The two witnesses must also sign the will or acknowledge their signature in the presence of the testator.
  4. The witnesses must be present at the same time as the testator when the will is signed or acknowledged.
  5. The witnesses must be over 18 years old, and not blind or mentally incapable of witnessing the signing.

[4] Fraud

If a person commits fraud to make a will in the UK, the will may be invalidated and declared void by a court. Fraud involves intentionally deceiving another person to induce them to do something that they would not otherwise have done.

In the context of wills, fraud can take several forms, including:

Forging a signature: If someone forges the signature of the testator on a will, this is a form of fraud that can invalidate the will.

Misrepresenting the contents of the will: If someone misrepresents the contents of a will to the testator, such as by claiming that the will includes provisions that it does not, this is a form of fraud that can invalidate the will.

Coercing the testator: If someone uses physical or emotional coercion to force the testator to sign a will that they would not otherwise have signed, this is a form of fraud that can invalidate the will.

If a will is found to have been made as a result of fraud, it will be treated as if it had never existed. This means that the estate will be distributed according to the rules of intestacy, unless there is another valid will in existence.

If you suspect that a will has been made as a result of fraud, it is important to seek legal advice as soon as possible. A solicitor with experience in contentious probate cases can help you to gather evidence of fraud and advise you on the best course of action. They may suggest that you make an application to the court to have the will declared void and for the estate to be distributed in accordance with the rules of intestacy.

[5] Revocation

A will can be revoked in a number of ways, such as by making a subsequent will that expressly revokes the earlier one, or by destroying the original will with the intention of revoking it. If a will has been properly revoked, it will no longer be valid.

The process of revoking a will is governed by the Wills Act 1837, which sets out the legal requirements for revocation. According to the Act, a will can be revoked by:

Destruction: The testator can revoke their will by destroying it with the intention of revoking it. This can be done by burning, tearing, or otherwise destroying the will.

Writing and executing a new will: If the testator writes and executes a new will, the previous will is automatically revoked.

Marriage or civil partnership: If the testator marries or enters into a civil partnership after making their will, their existing will is automatically revoked, unless it was made in contemplation of the marriage or civil partnership.

Divorce or dissolution of civil partnership: If the testator gets divorced or their civil partnership is dissolved, any provisions in their will that relate to their former spouse or civil partner are automatically revoked, unless the will expressly provides otherwise.

Express revocation: The testator can revoke their will by making a written declaration of revocation, which must be executed in the same way as a will.

It is important to note that in order for a revocation to be valid, it must be done with the intention of revoking the will. If the testator destroys their will by accident, for example, it will not be considered revoked. Similarly, if the testator executes a new will without the intention of revoking their previous will, both wills may be considered valid and the court will have to determine how to distribute the assets.

If a will is found to have been revoked improperly, it may be possible to challenge the revocation and have the previous will reinstated. It is important to seek legal advice if you believe that a will has been revoked improperly.

Creating a will is an important step in planning for the future. It allows you to choose how your assets will be distributed, can help to avoid family disputes, reduce estate taxes, name a guardian for your children, and provide peace of mind. But all these benefits will be for nothing if the will has been invalidated. We hope you found this blog detailing 5 reasons your will may be invalid to be beneficial.

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