People who write a will are sometimes concerned that it may be contested after their death leading to unwanted changes or that their will could be declared invalid for various reasons.
There are several reasons why a will could be declared invalid. We shall review the reasons that usually top the list.
- A Lack of Testamentary Capacity
In England & Wales, anyone making a will is required to have ‘testamentary capacity’ at the time of writing it.
A person is said to have testamentary capacity if he
- Is aware that he is making a will and understands the implications of his actions
- Understands the content of his estate
- Is aware of the claims of the beneficiaries that he can be expected to have in mind
These are the three basic requirements and, should it be proved that the person lacked testamentary capacity at the time of writing the will, the will could subsequently be declared invalid.
- Undue influence
For a will to be valid, it must be apparent that the instructions recorded in the will are those of the testator only. No family member or friend can be allowed to persuade, influence or manipulate the decisions made by physical or mental intimidation.
After death, if it is proved that the testator was unduly influenced while writing the will, the will be declared invalid.
If you have this concern you should be sure to take independent legal advice from a solicitor before making your will.
- Will not properly signed and witnessed
Wills must be signed by the testator in the presence of two independent witnesses who must both thereafter sign the will in the presence of the testator. Failure to follow this procedure results in the will not being properly executed and being an invalid document.
You must make sure of the following:
- The witnesses are not beneficiaries named in the will
- The witnesses are not married to a beneficiary
Other reasons for post death complications
A will can also be declared invalid or revoked if
- It is proved that the will was forged
- The testator subsequently gets married
- The will is intentionally destroyed
- The will lacks clarity
- The instructions are irrational or unusual in the circumstances
Contesting of the will
Anyone suspecting fraud, undue influence or a lack of testamentary capacity may contest a will and it is then for the person wishing to prove the will after the death of the testator to demonstrate that the will is valid. Those contesting the will may bring evidence of a lack of understanding on account of illness, dementia or frailty of age.
Legislation enables various individuals including the deceased’s spouse and children or those living with or maintained by the deceased to apply to court if they have been left out of the will or if they feel that they should have received more from the estate.
If you are concerned that someone may challenge your testamentary capacity after your death, you could ask a medical professional to be one of your witnesses. Better still, someone suitably qualified can confirm your testamentary capacity and record this in writing and thus ensure that your will remains valid.
In some cases, a will can lose validity on account of simple mistakes. At other times, the reasons can be more serious. Please be aware that should your will be declared invalid after your death, this will have serious implications for your beneficiaries and family members it can cost them a considerable amount of time and money when resolving the issues.
When you take professional help, the risk of your will being declares invalid or being contested is greatly reduced. Aristone Solicitors can help you ensure that your will is executed exactly as you wished it to be, contact us today.