When does a will become invalid?

The risk of an invalid will

Creating a will isn’t always the most pleasant experience, but it provides a legally binding way of ensuring that your wishes are observed after your passing and that your loved ones are taken care of.

However, there are a number of circumstances that can render your will invalid, which can have serious consequences for your beneficiaries (those set to inherit from your will). In this guide, we explore some of the most common reasons a will can be invalidated, and how to prevent this from happening to you and your loved ones.

What makes a will invalid?

The decision to invalidate a will can be made for a variety of reasons, though fundamentally it means that there is reasonable doubt as to whether what is recorded in the document is a true and informed report of the deceased’s wishes.

Below, we explain the most common reasons for invalidating a will.

Lack of capacity

According to UK law, to make a will you must be over the age of 18 and have ‘testamentary capacity’.

Put simply, testamentary capacity means that you understand what making a will entails and the implications of your wishes and directions. To have testamentary capacity at the time of making a will, you must:

• Understand what making a will means and how a will works
• Understand what is included in your estate (i.e. your possessions and assets, such as finances and assets)
• Understand who may have a claim to your estate, and what it could mean to include or exclude them from your will
• Not have been under any undue influence or disorder of the mind

It is possible that your will could be challenged after your death, typically by those who feel they have been excluded from the will or feel they have not been awarded a generous enough inheritance. One of the reasons they may use to bring this challenge was that you were not aware of the consequences of your decisions; be that from influence from a third party, an illness such as dementia or Alzheimer's, or the effects of medication.

If this is a concern, particularly from a medical standpoint, one action you can take is to ask a medical practitioner to be a witness to your will. This can lend additional authority to the will, as it signifies that the medical professional believed you to be of sound mind and have testamentary capacity when you signed the document.

Undue influence

Making a will and deciding who should or should not be named as a beneficiary can have significant implications for all concerned parties. Unfortunately, this can at times lead to people being put under pressure to make certain decisions within their will, even if it goes against their own wishes.

When you draft and sign a will, you must do so voluntarily, and the instructions set out must reflect your own intentions. Third parties are not allowed to dictate what is or is not included in your will, whether by physical, verbal or emotional manipulation.

In cases where it is deemed that a third party had an undue influence over the creation of your will, it can lead to your will being invalidated.

One of the safeguards against undue influence in wills is the signing of your will by witnesses. There are rules around who can be a witness to your will, which include:

• Witnesses should (although do not legally need to be) over 18 years old, be of sound mind and not visually impaired
• They must be independent, which means they cannot be named as beneficiaries, or be related to you or your beneficiaries
• The will must be signed in your presence, and you must sign the will in the presence of your witnesses

Failing to sign or witness the will properly could lead to your will becoming void.

Inadequate execution of the will

For a will to be valid and legally binding, there are several steps that must be taken. These may seem like formalities, but they are legally required according to the Wills Act 1837, which means a failure to properly execute any of these stages can mean your will is invalid.

For a will to be properly executed, it must:

• Be set out in writing (oral wills are not valid in the UK)
• You must sign or acknowledge your signature in the presence of two independent witnesses
• Your will must be signed by two independent witnesses in your presence
• The witnesses should be over the age of 18, have the mental capacity to witness a legal document being signed, and not be visually impaired

Negligence of solicitor or other professional

Seeking the support of a professional, such as a will writing solicitor, when writing your will can have huge benefits. Not only will they be able to provide in-depth legal advice tailored to your situation, but they can also help to ensure that your will is – and remains – valid and robust.

In most cases, the advice offered is appropriate and relevant to the individual, but there are times when this is not the case and people are provided with incorrect or misleading information.

As we have previously stated, the validity of a will hinges on the ability of the person making the will (known as the testator) to understand what their will means, how it will be used, and the implications this has for their beneficiaries and loved ones.

Inaccurate or misleading information by a professional can mean that this is not the case, and the testator is unaware of what their will truly means. This causes a will to be invalidated, as it cannot be confirmed that the testator would have made the same choices had they been aware of what their instructions ultimately mean.

It is critical that when you seek the support of a professional that you ensure they are experts in the field and have a wealth of experience to evidence their success and legal know-how. At Slater and Gordon, our will writing solicitors have supported thousands of clients over the years in drafting a robust will that effectively sets out their wishes, no matter the complexity of the estate.

What to do if you’re concerned about a will becoming void

Our wills and probate solicitors have a wealth of experience on the complexities associated with wills, trusts, and probate administration. Our years of practice give us the focussed expertise to navigate even the most complex cases. We proudly serve clients across our national network ensuring accessibility and convenience for individuals and families seeking assistance with wills and probate matters.

If you’re concerned about your will being challenged, or becoming invalidated, speak to our team today on 0330 041 5869 or reach out online using our contact form.