February 19, 2020

Invalid Wills – What makes a Will invalid?

What can affect the validity of Will? Is my Will Valid?

 

In this short article, we’re going to explain some of the things that can invalidate your Will and some of the practical considerations you ought to be making when writing your Will.

 

Use a professional

Firstly, it’s not mandatory to use a Solicitor to write your Will or to have a law firm like Fortis to assist you but in choosing the right professional you can avoid the pitfalls of DIY Wills.

One of the major issues with DIY Wills is that any errors will not come to the surface until after you (the testator) has passed away. This means that very little, If anything, can be done to rectify any errors.

At Fortis Law, we’ve seen the consequences caused by well-meaning testators who thought they could save themselves a little money and write their own Will. Whilst it is also possible to buy an ‘off the shelf’ Will kit, it’s likely that it will only cater for the simplest of estates and won’t take into account some of the more common issues we face today like blended families, second marriages, and effective bloodline planning which is often made possible through the use of trusts.

It would be our advice to get a free, no-obligation consultation with a Fortis consultant who will be able to listen to your circumstances and help put an effective estate plan in place (should you choose to proceed). The benefits will then be that all documents will be drawn up by an experienced professional who takes into account both your circumstances and the relevant legislation.

As this is a specialized area, we use the example that you wouldn’t want an unqualified ‘doctor’ in charge of your surgery.

 

Undue Influence

Undue influence is the term given to circumstances where someone may not be making their own decisions freely. When writing your Will you have the ability to leave what you have to whom you like and this is called testamentary freedom. Undue influence occurs when there is a level of coercion from a person seeking to influence how the estate is to be distributed. This opens the Will up to challenge and when proven, will most likely make the document invalid. Often these disputes are only raised after you’ve passed away.

It’s important to note that under the Law of England and Wales, there may be someone people who have rights to inherit and more information can be found in the Inheritance (Provision for Family and Dependents) Act 1975.

 

Procedural Incorrectness

For a Will to be admissible at Probate (to be accepted) it needs to be your Last Will and Testament and it needs to have been signed and witnessed correctly. A professional helping you write your Will is able to ensure that this is done in accordance with S.9 Wills Act 1837 and will make sure that the people witnessing your Will are independent (not beneficiaries etc.). We’ve seen countless Wills that haven’t been signed and witnessed correctly and the result being either that gifts in the Will aren’t valid (people miss out) or that the entire Will is invalid meaning that either a previous Will (if one exists) is held to be the Last Will and Testament or that the estate passes in accordance with the Laws of Intestacy. Either way, the work you’ve put into writing your Will has been done in vain.

 

Fraud and Impersonation

Whilst these cases are thankfully infrequent, there are circumstances where a Will comes to light that hasn’t been created by the testator and is forged. This is more common where the Will is created using a DIY kit and a signature is forged. If you suspect this to have happened then speaking to a specialist that deals exclusively in cases like this is imperative. Fortis Law can provide further guidance in these circumstances and work with specialists in disputed Wills.

When Fortis consultants help our clients, we look at I.D for the testator to ensure that we know who we’re working with and we take additional precautions to ensure that fraud can’t be committed.

 

Mental Capacity

Disputes arising over the assessment of someone’s capacity to make a Will are on the rise. A professional will make notes regarding this during their appointment and it’s all centred around a legal test set out in the case of Banks v Goodfellow (1870).  A professional will be making notes regarding the testators understanding of the process they are entering into, their knowledge and understanding surrounding what they are giving away (in their Will), and they will understand and give consideration to who ought to have a claim on their estate.  Finally, they will need to be of sound mind and a professional will not proceed if it is deemed that the testator lacks capacity. Where doubts are raised, a professional is likely to seek the advice of a professional such as a doctor or mental capacity assessor.

Doubts over capacity are likely to result in claims and where proven, will result in the Will being held invalid.

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