The number of people seeking to contest a Will is on the increase and there have recently been some high profile inheritance dispute cases. This article examines some of the factors which can invalidate a Will.
What are the requirements for a Will to be valid?
For a Will to be legally valid and legally enforceable, it must comply with the requirements set out in section 9 of the Wills Act 1937. Since the purpose of a Will is to effectively dispose of a person’s entire estate, there are certain statutory safeguards in place to, in so far as possible, ensure that the person making the Will (the “testator”) does so on their own accord and without external pressures or influence.
In England and Wales, to be valid, a Will:
(1) must be in writing;
(2) the testator must have signed it with the intention of creating a valid Will;
(3) the testator’s signature must be made in the presence of two independent adult witnesses who are not beneficiaries of the Will; and
(4) both witnesses must also have signed it with the intention of creating a binding legal document.
Can a Will be challenged?
It is entirely possible that after the testators’ death, an individual or even a group of individuals may wish to challenge the validity of a Will and there could be a number of reasons for doing so. Often enough, those who bring a claim against an estate believe they have an entitlement to a proportion of or even an entitlement to the entirety of the estate and often contend they have been unfairly excluded from the Will or that the Will does not reflect the true intentions of the testator and should be deemed invalid. This is a highly specialist area of law and it is crucial to seek expert legal advice early on.
In this article we are going to focus on the latter part; the invalidity of a Will and specifically how you can avoid the pitfalls of a DIY Will.
What causes a Will to be considered invalid?
In the event that the validity of a Will is called in to question, it is likely that several factors will be closely examined. These factors include, but are not limited to, circumstances where the Will may have been forged, whether the testator lacked mental capacity to understand their actions not only when writing the Will but in also signing it, whether the testator has been manipulated, pressured or even coerced in to signing a Will, whether an invalid procedure had been followed such as the Will itself was not properly signed or witnessed in accordance with the Wills Act 1837, and/or whether the testator knew or approved the contents of the Will which typically arises where a beneficiary has been involved in its preparation.
What are the consequences if a Will is found to be invalid?
If the Will is found to be invalid, this could have serious implications for the beneficiaries named in the Will. Not only is it likely to cost the beneficiaries thousands of pounds and time to resolve, but in the meantime the appointed executor of the estate will be unable to obtain the grant of probate, and without the grant confirming the executors authority to administer the estate, the deceased’s assets cannot be accessed or distributed to any of the beneficiaries. Moreover, if the circumstances cannot be resolved or a previously valid Will presented, the testator will be deemed to have died intestate. This means that the intestacy rules will take effect and the rules will determine how the estate will be distributed and as a consequence completely different people to those named in the Will could end up inheriting the estate.
Is the revocation of a Will different to that of an invalid Will?
The revocation of a Will means that the Will has effectively been cancelled by the testator and it is something that can be done at any time during the testator’s lifetime. There are two effective methods of revoking a Will; involuntary revocation which involves an automatic operation of the law, or a voluntary revocation which involves the deliberate act of the testator.
Involuntary revocation:
In most circumstances a validly executed Will written prior to marriage or a civil partnership ceremony will be by law revoked upon such an event, regardless of the testators intentions, and as a result, unless another Will is validly executed, the rules of intestacy will apply. A Will made prior to the event will only continue to be valid if it was written in contemplation of the event. Similarly, certain provisions of a Will are revocable by law on divorce or nullity of marriage or civil partnership. This can include circumstances where the testator had intended to leave their spouse or civil partner a gift in their Will, but by virtue of the law, such gift will be treated as invalid.
Voluntary revocation:
There are three ways in which a testator can voluntarily revoke a Will; intentionally destroy it so that it is unreadable, by writing another Will or codicil, or by making a declaration in writing of an intention to revoke it. To be valid, the writing of a new Will or codicil or the making of a declaration must follow the same requirements aforementioned. If a new Will is written, specific wording should be used to expressly revoke any former Wills to avoid any confusion in the event that the other Will is later discovered.
Are there situations in which a Will might be technically valid, but still not upheld?
There are circumstances in which a Will can be technically valid, but still not upheld. It is possible under the Inheritance (Provision for Family and Dependants) Act 1975 (the “Act”) for a spouse and certain other classes of eligible individuals to contest a Will and bring a claim against the estate if that person can show that the Will fails to make reasonable financial provision for them.
This can be seen in the case of Thompson v Raggett [2018] which shows that under English law it is entirely possible for a properly executed Will to be contested providing the individual contesting the will can show that the Will does not accurately reflect the true intentions of the testator.
This can also be seen in the case of Ilott v The Blue Cross & Others [2017] whereby the Supreme Court gave particular weight to testamentary freedom and made clear that if there is a validly executed Will that the deceased’s wishes should only be overridden in cases of genuine need.
Why should I instruct a solicitor to make a Will?
As we have explored above, there are strict rules governing how a Will must be executed and witnessed in order for it to be legally valid and without the requisite legal expertise in this area of law it may be easy to fall foul of these criteria.
Moreover, a DIY Will is often unclear and legally uncertain, which could make it easier to challenge or even invalidate your Will altogether. The consequences of which can be expensive and time consuming to resolve and in some circumstances could have serious implications for the named beneficiaries.
An invalid Will is entirely avoidable and by instructing a solicitor you can not only ensure that your Will is written to reflect your true intentions but also avoid the potential issues which may arise after your death. A solicitor can also provide you with tailored advice specific to your circumstances including how to adequately safeguard your assets against any potential claims against your estate and provide you with advice and guidance on inheritance tax matters.
The best course of action you can take is to put in place a detailed and validly executed Will and to update it regularly.
Expert legal advice
For further advice on contesting a Will, please contact our Dispute Resolution Team. For advice on making a valid Will, please contact a member of our Wills, Tax & Estate Administration team. Girlings has offices in Ashford, Canterbury and Herne Bay.
