The Validity of Wills

If you make a Will, it is almost certainly because you want to decide who will receive your property — not have it distributed in an arbitrary fashion according to the Rules of Intestacy.

Therefore you will want to be sure that your Will is both valid and worded in such a way that there can be no misunderstanding about what you mean, otherwise you may leave the door open for the Will to be contested.

Contesting a Will

There are several ways in which a Will can be contested:

	it can be judged invalid and set aside altogether
	there can be a dispute over what is intended so that some (or all) bequests may fail
	a dependant may make a claim to the court if the Will does not provide for them

There are several grounds for disputing the validity of a Will:

Capacity

When you sign your Will you must be capable of understanding what it says and the effect it has. This test is sometimes called being of "sound mind", but that is not really quite the same thing. In fact, someone who is not of "sound mind" can make a valid Will so long as their unsoundness does not prevent them understanding the Will. However, if there are any doubts as to mental capacity it is highly advisable to get a doctor's certification of understanding.

Intention

At the time you sign, you must intend the document to be a Will, i.e. that its provisions will be binding after your death.

Duress

If you are forced to sign, the Will is invalid. What "forced" means, however, may be open to question. If someone threatens harm if you don't sign, you have undoubtedly been forced. If someone exerts moral pressure ("I think you're really mean if you don't leave me something after all I've done for you"), you have not been forced. However, if they add "and I'll never see you again", we begin to wander into a grey area.

Fraud

If you are tricked into signing, the Will is not valid. For instance, if you sign a piece of paper without knowing what it says.

Proper Form

The Will must be written down, and it must be signed and witnessed correctly.

You need two witnesses who must be independent — they cannot be beneficiaries of the Will or married to a beneficiary, or the civil partner of the beneficiary.

The witnesses must see you sign, and they must sign after you do. However, they do not need to know the contents of the Will — it is the fact of your signature that they are witnessing. The fact that they must see you sign means that a blind person cannot be a witness.

Note: if a beneficiary was also a witness it might not invalidate the whole Will, only the gift to them.

Marriage

Getting married or entering into a civil partnership invalidates any Will made before the wedding or civil partnership — unless it specifically states that it is made in contemplation of marriage or the civil partnership.

Interestingly, getting divorced does not invalidate the whole Will, only the bequest to the ex-spouse. Their share will be divided between the other beneficiaries or otherwise disposed of according to instructions in the Will as if they had died first. (Because this may make a nonsense of what you intended to do in the Will, it is a very good idea to make a new Will in the event of divorce.)

Ambiguous Wording

If it really is unclear what you meant to happen by the provisions of your Will, it may well be judged to be completely invalid.

However, this is a rare occurrence. It is more likely that imprecise wording will just cause problems for those you leave behind — for instance, unintentionally creating a trust by such loose wording as: "I leave everything to my wife and to my son after she dies."

When lawyers make Wills they can sometimes seem to be written in double-dutch (or "lawyer-speak"). However, there is a very good reason for this in that some words have very exact legal meanings, and are thus less open to misunderstanding than many "simpler" words.

When we draft Wills, we listen to what you want and then put your wishes into precise legal language that will make it very difficult for the Will be contested on the grounds of ambiguity.

Inheritance Act Claims

By the Inheritance (Provision for Family and Dependants) Act 1975 certain family members and other dependants can make a claim against your estate if you don't make provision for them in your Will.

Surviving spouses and civil partners are in a special position in that the court may well order that they should have a "fair share" of the family's assets which, in a wealthy family, may be a great deal more than only sufficient to live on. Ex-wives (and indeed ex-husbands) are also entitled to claim so long as they have not remarried. They are quite likely to receive something if there was a maintenance order at the time of death, but not if there had been a "clean break" at the time of the divorce.

Other members of the family who were dependant on the deceased, e.g. children, may claim a share of the estate if the Will does not give them one, but they are not likely to receive a higher sum than "maintenance". "Children", incidentally, can be any age at the time of their parent's death, not just minors.

The other main class of person who can claim under the Act are cohabitees — defined as living as husband and wife for 2 years or more at the time of the death. In this case, the cohabitee does not need to have been strictly dependant on the deceased in order to receive provision.

The main purpose of making a Will is, of course, to ensure that your wishes are carried out after your death. If there is a possibility that the provisions of your Will may fall foul of the Inheritance Act, yet you have good reason for what you do, you can set out your reasons in a special document called an Inheritance Act Statement. For instance, if you have given their "inheritance" to one of your children during your lifetime and want to exclude that child from your Will, you can say so in the statement. While Inheritance Act Statements are not binding on the court in the event that your Will is disputed, the court is more likely to rule in favour of upholding the provisions of the Will if it can see that you have a reasonable motive for what you do.

Beneficiary Agreement

There is one final way to overturn the provisions of a Will, which is that all the (adult) beneficiaries can get together and decide to share your estate in a different way, e.g. if you leave everything to your children but in differing shares, together they can decide to share equally. Probably the best way to prevent this happening is to tell your beneficiaries why you are leaving more to one than another, either verbally or by means of an Inheritance Act Statement.

Article first published October 2002
Last Reviewed April 2007