Many people mistakenly believe if they write a Will, that’s all they need to do. However, as life goes on, personal and financial circumstances can change, which may affect the terms of your Will.
The law sets out the rules which govern the validity of Wills.
Why should my Will be valid?
There are a number of reasons you should make sure your Will is valid. If your Will is deemed to be invalid, your wishes will not be legally binding. If there is an earlier Will in place, this will take effect if it is valid, or if there is no Will in place, the laws of Intestacy will determine who benefits from your estate and who is entitled to administer it, which may not be in accordance with your wishes.
What can make a Will invalid?
A number of factors will determine if your will is valid or not:-
- Not signed by the Testator
- Alterations made to the Will after it has been signed, or not initialled
- Not signed in the presence of two Witnesses
- Witnesses are also beneficiaries of the Will
- Incorrectly dated or not dated at all
- The Testator lacked capacity to make the Will
- Undue Influence or Coercion by a third party
One of the biggest problems with homemade Wills is that they are not drafted and/or executed correctly and therefore not valid. Sometimes the wording of a particular clause can be ambiguous, so even if the Will itself is valid on the face of it, the meaning of the Will is open to interpretation and may ultimately need to be determined by the Court.
Not up to date
You should review your Will on a regular basis and at least every 2 – 3 years to make sure that it takes into account any changes in your personal circumstances and any changes in the law. This is important to make sure any children you have, or your spouse/partner are provided for in your Will. This is also important if a beneficiary or an executor dies before you do, or you get married or divorced.
It is important that you have capacity to make a Will (known as ‘Testamentary Capacity’). There is a legal test which you need to be able to satisfy to determine whether or not you have capacity to make a Will. A diagnosis of dementia does not necessarily mean that you lack capacity to make a Will. Sometimes, it may be necessary to obtain a medical report to assess your capacity to make a Will. This should always be done in cases where there is reason to doubt a person’s capacity to make a Will, or in the case of an elderly Testator who is making a Will significantly different to the terms of an earlier Will. If the Will is challenged after death on the grounds of capacity, the medical evidence can be produced to rebut any claim.
If you are deemed to lack capacity to make a Will, it is possible for an application to be made on your behalf to the Court of Protection for approval of a ‘Statutory Will.’ However, this is a very lengthy and drawn out process which can run into thousands of pounds, particularly if contested, and is to be considered as a last resort.
If you were pressured
If you were pressured or coerced into writing or changing your Will, then a Court may decide that the will is invalid. Undue influence and coercion are extremely difficult to prove and you would need to think very carefully before pursuing a claim as the cost of such can escalate very quickly, and there is no guarantee that the costs would be paid out of the estate.
Married after Will was written
Even if you have made a Will which is valid and legally binding, if you subsequently get married, the Will is automatically revoked, unless it is made in contemplation of marriage. A special clause can be included in the Will if you are engaged to be married or you know that you will be getting married shortly after making the Will.
Extra things to know
It’s important to store your Will somewhere secure and where it can easily be found, such as a fireproof safe at home, your bank, or with your Solicitor. You should make sure that you tell your Executors where the Will is kept, so that it can easily be located after your death. You can choose to register your Will with Certainty (The National Wills Register) so that there is a record of the fact that you have made a Will and where it is stored.
If a Will cannot be found, there is a danger that your estate will be administered in accordance with the Intestacy Rules, which would mean that your wishes in your Will would not be carried out. IFor more information on Wills, please visit our pages on wills here.
Or speak to one of our specialist legal team on 0800 614 722.