Steve Bish MSWW Fellow IoP CILEx
By Steve Bish MSWW Fellow IoP CILEx.
A Will is crucial in ensuring your loved ones will be cared for in the future in the way that you want. However, it is easy to make an error in making or signing and witnessing a Will, meaning it could be invalid. Today at S Bish Estate Planning we look into this in more detail.
If your Will is not considered valid, then your estate will pass under the terms of any existing and valid earlier Will or otherwise under the Rules of Intestacy, which might mean that those whom you want to inherit miss out. It also increases the risk of a dispute arising between family members, who may have differing opinions as to what should happen to your estate.
What makes a Will invalid?
There are several ways in which a Will could be invalid, including the following:
The Will is not correctly signed and witnessed
The execution of a Will must be carried out properly or there is a risk that it could be invalid. Two witnesses need to sign as well as the person making the Will. The witnesses should ideally be over 18 and of sound mind, and not blind. They should not be relatives or beneficiaries or married or related to beneficiaries.
The witnesses should both sign the Will in sight of each other and of the person making the Will, although new rules introduced during the pandemic have allowed Wills to be witnessed by video link.
The person making the Will lacks testamentary capacity
The person making the Will must understand the implications of making the Will, to include the effect of the Will, the extent of their estate that is being left under the terms of the Will and to whom they are leaving their estate.
Where an individual does not have sufficient mental understanding, their Will is invalid. If there is likely to be any question over this in the future, it is recommended that a medical professional provide a letter confirming that they have talked to the person making the Will and found them to have sufficient capacity to do so.
The person making the Will has been subjected to undue influence
Someone making a Will should do so without being coerced or unduly influenced. It can be difficult to identify undue influence, but where someone has suddenly or unexpectedly changed their Will, included someone who wasn’t in the Will before or substantially changed the amount they are to receive and the person making the Will was reliant or influenced by the beneficiary, this could be a warning sign.
Undue influence means that the person making the Will has left gifts in their Will that they would not have made but for the undue influence. Where proved, undue influence will mean that a Will is invalid.
There is a problem with the Will itself
Other issues
Other matters can cause difficulties, even if the whole of the Will is not invalid. For example, beneficiaries must not witness a Will and if they do, they will not be able to inherit. Gifts to a former spouse will also fail. These types of issues can mean that an estate is partially or wholly intestate or without an heir.
If you have a Will already, it is worth reviewing it to ensure that firstly, it is valid and secondly, that it is up to date.
Contact us
If you would like to speak to one of our experts call us on 01727 220930 or email us at [email protected].
