June 29th, 2020
Is my Will valid?
Following on from Jonathan’s recent blog post, Do I really need a Will, it might be the case that you already have a Will, but is it valid?
This may seem like an odd thing to consider, but there are a number of factors that might render your current Will invalid, in which case it is recommended you review your Will and get it updated, where necessary:
You have got married or entered into a civil partnership since your Will was prepared
Unless the Will contained a clause in anticipation of the marriage/ civil partnership, and it is clear the Will is to continue. If not, entering into marriage/ a civil partnership will invalidate your Will.
Your Will was not correctly witnessed
You must sign your Will in the presence of two independent witnesses, and those witnesses must then also sign your Will in your presence. A valid Will must be made in writing.
Witnesses:
- Should be aged 18 or over
- Should be of sound mind
- Cannot be blind (otherwise they cannot witness the Will)
- Must be independent (i.e. not a beneficiary of the Will, and not related to you by blood or marriage)
A Will not correctly witnessed will not be valid.
If a beneficiary is also a witness of the Will, their gift will fail, but the remainder of the Will would remain valid.
You lacked testamentary capacity when making your Will
This is where the testator (the person executing a Will) must have a certain level of mental ability at the time they execute their Will. This means the testator must:
- Have a general understanding of what a Will is
- Have an idea of the property they hold
- Be aware of those who will benefit from the Will and understand the effect of the Will
- Be able to sign the Will, even if there is some mental disorder, as long as it does not affect the above points
Where testamentary capacity is lacking, the Will may be invalid. Testamentary capacity is assumed unless proven otherwise.
Your Will was unduly influenced
It is vital that when making a Will, this is done voluntarily under your own free will. It is your decision alone what goes in your Will, and no one is able to exert verbal, emotional or physical influence over you.
Although it may be difficult to prove that you were under undue influence when making your Will, if this was later discovered then your Will could be considered invalid.
Wills that have been destroyed
Where you have destroyed a Will, you may think that it is now invalid, but that is not necessarily the case. It must be your clear intention to destroy the Will, and you must tear up, burn or otherwise destroy the document. Where your Will is destroyed by someone else, it must be destroyed in your presence. A Will that is accidentally destroyed can remain valid and what is left of it can be submitted for probate.
Although you can revoke your Will by intentional destruction, it is good practice that any new Wills contain a clause revoking any previous Wills.
Where you have gone to the effort of making a Will, it is vital that you ensure that it is valid, otherwise your estate could pass under the intestacy rules, meaning your assets may not pass in the way you had intended.
To book a free consultation to discuss your Will options then please book a call here.
You can read more about our Will Writing Service here.
