Clip folder of a last will and testament being signed

What invalidates a Will ?

Find out what can make a Will invalid in our extensive guide

Understanding what can make a Will invalid is important to ensure your wishes are followed. Common problems include missing signatures, undue influence or mental incapacity. This guide explains these issues in simple terms and shows you how to challenge an invalid Will.

It also covers what happens to your assets if a Will is not valid. Whether you're dealing with a disputed Will or planning your estate, this guide offers key information to help you through these complex matters.

Reasons why a Will may be invalid

There are many reasons why a Will may be invalid, including:

1. Insufficient execution

To make sure a Will is valid and can be enforced, you need to follow the rules set by the Wills Act 1837:

1. Written Will: The Will, whether it’s a Mirror Will or a Trust Will must be written down, either by the person making it (the testator) or a solicitor. Spoken Wills are not accepted in the UK (unless made by someone in the armed forces and on active duty), and will be deemed invalid.
2. Testator's signature: The person making the Will must sign it in front of two witnesses.
3. Witnesses' signatures: The two witnesses must also sign the Will while the testator is watching.
4. Witness requirements: All witnesses must ideally should be at least 18 years old and mentally capable of understanding what they are witnessing. They can be under 18 if they are mentally capable of understanding what they are witnessing.

If these rules aren't followed, a Will is considered invalid in the UK.

2. Inability to create a Will

For a Will to be valid, the person making it must be mentally capable. This is called having "testamentary capacity." To have this capacity, the testator needs to understand:

1. Understand they are making a Will that will come into effect after their death.
2. Understand the extent and composition of their estate
3. Understand the effects of including or leaving out certain people as beneficiaries (those who would usually expect to inherit from them)
4. Not be suffering a delusion of the mind that would affect the Wills provisions.

3. Revocation

A person can revoke their Will, making it invalid. This can happen by destroying the Will on purpose or by making a new Will that says the old one is cancelled.

Here are some ways to cancel a Will:

New Will: Writing and properly signing a new Will cancels the old one if it clearly says so. If it doesn't, both Wills might be considered.
Destruction: Intentionally destroying the Will (like tearing it up or burning it) cancels it. Accidental destruction doesn't count.
Marriage or civil partnership: Getting married or entering a civil partnership after making a Will automatically cancels it, unless the Will was made with the marriage in mind. You should make a new Will after getting married.
Divorce: After a divorce, anything in the Will related to the ex-spouse or civil partner is automatically cancelled, unless the Will says otherwise.

4. Undue influence

This happens when someone forces or tricks a person into changing their Will, so it doesn't reflect what they really wanted. This could be done by threatening them or putting mental pressure on them.

The person might be pushed to add certain things to the Will or leave out some people. Undue influence is often claimed if the person was sick, weak or relied a lot on the person accused of influencing them.

To challenge a Will for undue influence, you need to prove that the person was pressured into making decisions they wouldn't normally make. You also need to show that the person accused had the chance to put them under pressure.

Factors like the person's age, their relationship with the influencer, their mental or physical health and when the Will was made or changed are all considered.

5. Fraud

A Will can be declared invalid if it's proven to be fraudulent. This might happen if someone forged the testator's signature, lied about the contents or forced the testator to sign it. If a court decides the Will is fraudulent, it will be ignored. If there's no other valid Will, the estate will be distributed according to the rules of intestacy.

What are the legal requirements for a Will?

To create a legally valid Will, the testator must meet several requirements:

Be at least 18 years old.
Make the Will voluntarily, without any external influence.
Be of sound mind.
Write the Will down.
Sign the Will in the presence of two witnesses who are at least 18 years old.
Ensure the two witnesses sign the Will while the testator is present.

Can you contest an invalid Will?

If you believe a Will in the UK is invalid, you can challenge it. Here’s how:

1. Consult a solicitor: Find a solicitor who specialises in probate. They can help you understand if you have a valid reason to contest the Will and give you advice.

2. File an appeal: If you have grounds to contest, you need to file an official appeal with the court.

Remember, the responsibility to prove the Will is invalid lies with you. You must provide evidence, such as:

Medical records if you claim the person lacked mental capacity.
Witness statements if you believe there was undue influence.
Handwriting analysis if you suspect forgery.

After all the evidence is shared, your case will go to a court hearing. The judge will listen to both sides and then make a decision.

What happens when a Will becomes invalid?

If a court decides a Will is not valid after an appeal, the deceased person's estate is given out according to the last valid Will. If there isn't another valid Will, the estate is divided among family members based on the rules of intestacy.

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Saga is a registered trading name of Saga Personal Finance Limited, which is registered in England and Wales (company number 3023493). Registered office 3 Pancras Square, London, N1C 4AG. Saga is not authorised or regulated by the Solicitors Regulation Authority (SRA). All legal services are provided by Co-op Legal Services. Co-op Legal Services is a trading name of Co-operative Legal Services Limited which is authorised and regulated by the SRA, under registration number 567391.