What Can Invalidate A Will?
Posted on 15th June 2020
When a Will is being drafted, there are a number of different things that can invalidate the final document. Starting with no more than a simple mistake, and spanning all the way to more contentious issues (for example, a Will dispute from a relative who has been excluded from the Will or a dispute over whether the person who made the Will had capacity to do so at that time).
No matter why a Will is being contested, if it is found to be invalid after your death, this could have serious implications for the beneficiaries of your Estate, and could – potentially – cost thousands of pounds to resolve any dispute. Therefore, it’s always best to seek the professional assistance of Wills, Trusts and Probate Solicitors when drafting your Will, to help significantly reduce any risks of issues occurring after you’ve died, or mistakes being made when the Will is drafted.
Below, our Wills, Trusts and Probate Solicitors in Preston have outlined some of the most common reasons why Wills are found to be invalid after the person has died.
The Testator’s Capacity
When you make a Will in England or Wales, you must be at least aged 18, and you must have capacity at the time your Will is made (so, when it’s signed). Having capacity means that you need to be able to understand the following:-
- That your named beneficiaries will receive your assets. This could be specific gifts of money or personal items, or just a share of your overall Estate.
- The extent of your Estate at the time of making your Will. Obviously, you cannot say what your Estate will include in the future, however, if your circumstances do change after you have made a Will, you may then wish to review your current Will, and check whether this is still suitable for your requirements. You can read more about what your Estate is made up of, here.
- The implications of choosing to include (or even exclude) certain people. For example, if you are excluding your children, our Wills, Trusts and Probate Solicitors in Preston would need you to be able to understand what this could mean for your Estate if they decided to make a claim under the Inheritance (Provisions for Family and Dependants) Act 1975.
- Your actions and decisions. These cannot be influenced or chosen by other people, and must be entirely what you would want to happen.
If, during our initial appointment, our Wills, Trusts and Probate Solicitors were concerned that you did not fully understand what you were doing when making your Will, we may need to obtain the opinion of a GP, who could testify to your capacity. Otherwise, if your capacity cannot be fully ascertained, it could lead to a dispute over the contents of your Will, once you had passed away.
Could my Will be challenged?
It can sometimes seem like a horror story told by Wills, Trusts and Probate Solicitors to spook people into making a Will with a professional firm. However, sadly, Wills are challenged more than people may realise.
Typically, when a person has been excluded from a Will of a family member, or they have not been left what they feel they were entitled to, this will lead to them making a claim against the Estate. One way they could bring this claim is by arguing that you didn’t understand the circumstances surrounding making a Will, or that you didn’t understand what you were doing when you left them out of your Will, or left them a lesser share of your Estate.
In order to be successful, the person contesting the Will would need to prove that you lacked testamentary capacity when the Will was made. Unfortunately, this can be difficult, but it is possible. Common reasons that people may cite for lack of testamentary capacity would be that the Testator was old (so lacked capacity), had an illness, such as dementia or Alzheimer’s (so lacked capacity), or was taking medication (so, again, lacked capacity).
If you are making a Will and you are concerned that someone may question your capacity after you’ve died, you should speak to a GP and ask whether they can be a witness of your Will. This will help to show that you had capacity when you make a Will, which will help to uphold your Will as a valid legal document. You can read more about witnessing a Will in our Wills, Trusts and Probate Solicitors in Lancaster’s blog, here.
The influence of another person
When you make a Will, you must do so on your own terms (voluntarily). This means that only you can decide what goes into the Will. Other people cannot manipulate what you include in your Will by using physical, verbal or emotional power over you.
If it is found that you were unduly influenced when making your Will, it could be deemed invalid. If you are concerned about this, you should always seek legal advice, such as from our team of Wills, Trusts and Probate Solicitors in Preston or Lancaster.
How can I ensure that my Will is not contested?
To help prevent your Will from being contested after you have passed away, contact our team of expert Wills, Trusts and Probate Solicitors in Preston.
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