What Makes a Will Invalid?

Creating a Last Will and Testament is a crucial part of Estate Planning, as it dictates the distribution of your assets after your passing, ensuring your loved ones are cared for according to your wishes. However, it’s essential to understand what makes a Will invalid in the UK to ensure it’s legally binding. This article will explore the criteria that render a Will invalid, offering a comprehensive understanding of this aspect of Estate Planning.

Lack of Testamentary Capacity

One of the fundamental requirements for a Will to be valid is that the Testator (the person creating the Will) must have testamentary capacity. This means the Testator must be of sound mind and understanding at the time of creating the Will. They should fully comprehend the nature and extent of their assets and the implications of their decisions in the Will.

If a person creates a Will while suffering from a severe mental illness, under the influence of drugs or alcohol, or due to undue pressure, the Will may be declared invalid. Testamentary capacity is a crucial safeguard to ensure that the Testator’s wishes are genuine and not the result of coercion or impaired judgment.

Improper Execution

Ensuring the validity of a Last Will and Testament is crucial in the Estate Planning process, as it guarantees your wishes are respected and followed after your passing. In the UK, legal requirements to ensure a valid Will are as follows:

1. The Will Must Be in Writing: Wills must be in written form. This means they should either be handwritten (holographic Wills) or typed. Handwritten Wills, though less common, can be valid if they meet specific criteria, such as being entirely in the Testator’s handwriting and signed by the Testator. There is one exception to this rule: if the Testator is in active military service and facing imminent danger. In this situation, a verbal Will can be admissible.
2. Signature of the Testator: The Testator must sign the Will at the end. This signature is a fundamental requirement to demonstrate that the document truly represents their final wishes. If the Testator is physically unable to sign the Will, they may be allowed to direct someone else to do it for them, provided this is done in the presence of witnesses.
3. Witnesses: The valid execution of a Will requires the presence of witnesses. The role of witnesses is to confirm that the signature on the Will is indeed that of the Testator and to confirm that the Testator appeared to be of sound mind when signing the document. In the UK, two people are required to witness a Will. It is vital that they are not due to benefit from the Will, in which case their inheritance shall be forfeit.

IMPORTANT UPDATE: In July 2020, the UK government introduced legislation to allow the remote witnessing of Wills via video call during the Coronavirus pandemic. This will be permitted until January 2024, at which time there will be a review of the law. Please check if it’s still allowed if you’re making a Will after that date.

If any of these formalities are not followed correctly, this may cause the Will to become invalid, which can have significant consequences. If a Will is invalidated, it is as if no Will existed at all, and the estate will be subject to the Rules of Intestacy. In other words, the distribution of assets will be determined by the government, which may not align with your true intentions. To learn more, visit our guide to ‘What Happens if You Die Without a Will in the UK‘.

The strict adherence to these formal requirements is meant to safeguard the authenticity of the Will and to protect against fraud, undue influence, or coercion. By having clear and uniform rules regarding Will execution, the legal system aims to ensure that your final wishes are honoured, and the distribution of your assets is carried out in a fair and just manner. It is, therefore, essential for you to be aware of the specific legal requirements and to seek legal advice to ensure that your Will complies with these rules, reducing the risk of challenges or invalidation in the future.

Revocation

• Destroying the Will: When a Testator intentionally destroys their Will, it is typically considered a revocation. This deliberate act signifies their clear intent to nullify the existing document. Accidental damage to a Will may not necessarily be considered revocation, although it may cause the Will to become invalid.
• Creating a New Will: Creating a new Will typically revokes any previous Will as long as the new Will contains a revocation clause. This clause typically states that the Testator revokes all previous Wills and codicils. It is a common practice to include such clauses to ensure the clarity of the Testator’s wishes and prevent any ambiguity regarding which Will should be followed.
• Marriage: In the UK, the act of marriage revokes any previous Will unless it has been written in contemplation of marriage. As such, any person getting married should review their Will and make updates to ensure its validity.

Fraud or Undue Influence

• Fraud: Fraud in the context of a Will typically refers to situations where someone deceives or misrepresents information to the Testator to influence their decisions. For example, if a person lies about the value of an asset to manipulate the Testator into making specific bequests, this can be considered fraud.
• Undue Influence: Undue influence occurs when someone exerts pressure on the Testator that overpowers their own free will, effectively coercing them into making decisions against their true wishes. This can involve threats, manipulation, or taking advantage of the Testator’s vulnerability.

It’s essential to protect your true intentions when dealing with revocation, fraud, or undue influence. Legal safeguards, such as ensuring the Testator is of sound mind when creating a Will and having witnesses present during the signing of the Will, can help reduce the risk of these issues.

Additionally, regular updates to your Will in response to life events like marriage, divorce, or changes in Beneficiaries can help maintain the document’s relevance and accuracy. If you would like to learn more about updating your Will, please visit our comprehensive guide to updating your Will.

What Makes a Will Invalid?

Ensuring that your Last Will and Testament is valid is crucial to guarantee that your final wishes are carried out as intended. To avoid potential problems in the future, consult with a professional specialising in Wills and Probate. Here at ELM Legal Services, we can guide you through the process, help you meet all legal requirements, and minimise the risk of your Will becoming invalid due to issues like lack of capacity, improper execution, revocation, or fraud.

Contact Us

We have years of experience in Wills and Probate, and we’re here to assist you in creating a legally valid Will that reflects your true intentions. Don’t leave your legacy to chance; contact ELM Legal Services today to ensure your assets are distributed as you wish, providing peace of mind for you and your loved ones. Call us now on 0117 952 0698 or simply click on Contact Us.