- March 10, 2019
- Posted by: Stephen Coleclough
- Category: Will writing
Having a Will is crucial if you want to ensure that the assets in your estate are distributed according to your wishes after you die.
However, it is also important to also be careful about how the Will is created.
If you do not take the appropriate steps when creating your Will, it may be declared invalid.
If your Will is food to be invalid, it can cause a great of confusion amongst beneficiaries and make your passing even more stressful.
It can also lead your estate being passed through the laws of intestacy, which may cause your assets to be distributed in unintended ways.
To help you avoid this situation, this post will share the most common reasons why a Will would be declared invalid.
This will help avoid these common mistakes and the problems that having an invalid Will can cause.
How can a Will be declared invalid?
There are many potential mistakes or misunderstandings of the law which lead to the creation of an invalid Will.
Unless you hire a professional to help you create a Will, you will be at risk of running into one of these common problems.
The most common reasons for a Will being declared invalid include:
The Will is not correctly witnessed
In the United Kingdom, Wills must be signed in the presence of two independent witnesses.
One common mistake made by Will-makers is having the wrong kinds of witnesses present, which may invalidate their Will.
Your witnesses must be:
- Over the age of 18
- Independent of the Will-maker. This means they cannot be beneficiaries of the will or married/related to someone who is a beneficiary of the will
- The witnesses must be able to physically see the Will-maker sign the will. They must be present in the room and cannot be usually impaired
- The witnesses must immediately sign the Will while the Will-maker is watching
- The witnesses must have sufficient mental capacity to understand what they are witnessing
If the only problem is that one of the witnesses benefits from the will, they may simply lose their share of the inheritance and the rest of the will could remain valid.
Wills that have had a signature of the Will-maker or the witnesses forged will be immediately considered invalid.
Insufficient testamentary capacity
In the United Kingdom, anyone can write a will as long as they are over 18 years of age and have “testamentary capacity”.
Testamentary capacity means that you are of sound mind and understand the ramifications of the Will you are writing.
You must be able to understand:
- What kinds of assets you own (the size of your estate)
- Which beneficiaries are nominated to receive specific assets
- The implications of including or excluding people as beneficiaries
To have testamentary capacity you must be sound of mind, which means you have the intellectual capacity to think, reason, and understand for yourself.
Your decision making must also be completely independent.
If there is a beneficiary exerting undue influence over you, it may invalidate the Will.
In some cases, beneficiaries will challenge a Will by suggesting that the Will-maker was not of sound mind (usually due to a physical or mental illness).
This often occurs if the Will-maker is suffering from a disease like dementia or is taking medication which affects their cognition.
If you are making a Will and believe that your testamentary capacity may be challenged, you should have your doctor witness your Will.
Their medical opinion of your state of mind may be critical in ensuring the Will remains valid after any legal action.
The Will-maker was unduly influenced
For a Will to be valid, it must be written voluntarily by the Will-maker.
The Will-maker must be the only person who decides which assets go to particular beneficiaries.
If other people have been manipulating the Will-maker by exerting emotional, physical, or verbal power over them, the Will could be declared invalid.
The best way to avoid this situation is to work with a solicitor and independent witnesses.
The Will has been revoked
Another common way for a Will to be made invalid is to create a new Will that supersedes it.
If the new Will is correctly written, signed, and witnessed, then any older Wills are immediately invalidated.
However, the best practice is to physically destroy any old Wills, so no misunderstandings occur when you pass.
The Will-maker gets married
Most Wills are invalidated when a new marriage occurs.
You will have to write a new Will that has arrangements in place for your new spouse and children (if any).
A Will can remain valid after a new marriage if it already has specific provisions in place that deal with any forthcoming marriage.
If the plan is to make a new will after the ceremony, then make sure you are still sober!
The Will is intentionally destroyed
If you decide to destroy your Will, it will be immediately invalidated.
You can also make a written declaration that invalidates any Wills drawn up before a specific date.
This can be useful if you have created multiple Wills but have lost them.
It prevents those Wills from re-surfacing and being mistakenly used.