Validity of a Will
If you believe that a Will is invalid, it is important to seek legal advice as soon as possible. Our specialist Will disputes solicitors are experienced in advising clients who are challenging the validity of a Will, providing straightforward advice to help you navigate this difficult time.
Challenging the validity of a Will
Realising that your loved one’s Will may not be valid after they have died can bring up a whole range of emotions; from confusion to anger and even sadness. Your loved one may not have realised their Will hadn’t been executed properly, for example, or it may be that the Will was made under duress.
Whatever the situation, if you think that a Will is invalid, it is important to seek legal advice straight away.
Our Will disputes solicitors advise clients across the UK from our offices in Bristol and the surrounding area in Bedminster, Bishopston, Bristol city centre, Kingswood and Thornbury. We pride ourselves on providing common sense advice and working as a team to ensure you feel supported and well-informed from your initial conversation with us to the conclusion of your matter.
What are the grounds for challenging a Will?
There are several grounds for contesting a Will and your lawyer will advise you further after reviewing the Will and relevant evidence. The main reasons for challenging a Will are:
- Invalid execution, i.e. the Will was not signed, or the signature was not properly witnessed.
- The Testator (person making the Will) did not have mental capacity (lack of testamentary capacity).
- Want of knowledge and approval (the Testator did not understand or approve of the contents of the Will).
- Fraud (including fraudulent calumny) or forgery.
- Undue influence.
Invalid execution of a Will
Some people presume that as long as they have specified their wishes in writing, it constitutes a valid and legally binding Will. Unfortunately, this is not the case.
For a Will to be executed properly, it must meet one of the requirements of the Wills Act 1837. These are:
- The Will must be in writing.
- The Will must be signed by the Testator (or by someone else in their presence and at their request).
- The signature must be witnessed in the presence of two or more witnesses.
- Witness signatures must be made in the presence of the Testator (this can be via video call).
The Testator lacked mental capacity when writing their Will
One of the requirements for a valid Will is that the person making it must have the mental (testamentary) capacity to do so. Proving testamentary capacity can be challenging, but there is a legal test to determine whether a person has the mental capacity to write a Will.
The Testator must:
- Be of ‘sound mind’ (if a professional is writing the Will, they will ask certain questions to determine this).
- Understand what a Will is and what making one will mean for their loved ones after their death.
- Understand the provisions made regarding their estate within the Will.
- Understand who is being included in or excluded from the Will.
If you believe that a friend or family member lacked mental capacity when making their Will, you may have grounds for contesting its validity.
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Want of knowledge and approval
A person making a Will must understand and approve of the Will’s contents, including how the terms operate. For example, if a person making a Will was visually impaired, they may have been unable to read the Will nor had the opportunity for it to be read and explained to them. The question naturally arises, as to how that person might give effect to the resulting Will.
Fraud or forgery
Unfortunately, sometimes people make a Will fraudulently, pretending to be the Testator to financially gain from their estate after their death. This can include cases of forged signatures. Destruction of a Will so that an earlier one (and one that benefits that individual more) can take its place, also constitutes Will fraud.
Will fraud and forgery can result in criminal prosecution. However, loved ones are often unsure and hesitant about taking action, not least as the key witness (the Testator) has died and is therefore not able to confirm the fraud. An experienced solicitor can advise you on your options and look to challenge the Will based on fraud or forgery.
Undue influence
If you believe that your loved one was coerced into making a Will or influenced beyond mere persuasion into including or not including certain provisions in their Will, you may be able to challenge the validity of that Will.
Unfortunately, it is often older or vulnerable people who are placed under duress when making a Will, usually by those closest to them such as family members or even carers. Unfortunately, this often happens behind closed doors, making undue influence cases evidentially challenging.
If you suspect that a friend or family member made a Will under influence or duress, it is important to speak to a lawyer. Our specialist contentious probate solicitors will review your claim and advise you on what evidence might be needed to proceed.
Validity of a Will FAQs
A Will might be considered invalid if:
- It was not executed properly, i.e. not properly signed or witnessed.
- The Testator lacked mental capacity when writing it.
- The Testator did not know or approve of the contents of the Will.
- It is the product of fraud or was forgery.
- The Testator was coerced or influenced into making the Will and/or including certain provisions.
Ultimately, the court makes this decision. When you instruct our Will disputes solicitors, we will look at whether you have grounds for challenging the validity of a Will, including under the Wills Act 1837. We will help investigate the circumstances and advise you on whether such a claim has prospects of success.
If it is decided that a Will is invalid, the estate will be administered per the previous valid Will (if there was one).
If there is no previous Will, the estate will be administered under the rules of intestacy (the statutory provisions that apply when someone dies without a Will).
No, the death of an Executor (or all Executors) does not, in itself, invalidate a Will. If a named Executor dies after the Testator’s death, there is a set process for appointing another person to administer the estate in their place.
When writing your Will, it is good practice to appoint an Executor who is younger than you to reduce the likelihood of this happening but of course, it is not always as straightforward as that. That’s why it is advisable to appoint at least two Executors (or substitute Executors) so that if one passes away, the other can take responsibility for administering your estate.
A handwritten Will is valid if it complies with the requirements of the Wills Act 1837 (including that it is signed and witnessed), as a ‘formal’ written Will would be.
Contact our Will disputes solicitors
If you have concerns about an invalid Will or challenging the validity of a Will, our expert Contentious Probate team may be able to help. For an initial conversion, call us on 0117 325 2929 or fill out our online enquiry form and we will be in touch.