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What Makes A Will Valid or Invalid

What Makes A Will Valid or Invalid

Although it is commonly known that a Will should contain the information about who you wish to inherit your possessions after you die, there are also requirements that need to be met in order for a Will to be legally valid.

What makes a Will valid?

As a minimum the following must be true for a Will to be valid:

  • it must be in writing
  • signed by the person who made the Will (the testator), or signed by someone else at the testator’s direction
  • have been signed in the presence of two witnesses (both over the age of 18), who also need to have signed the Will
  • the testator (the person whose Will it is), must have Mental Capacity when signing the Will. The testator must be of sound mind, memory and understanding.
  • The testator must have made the Will without being put under any pressure to do so, or being influenced as to what to put in their Will

It is advisable that a Will is dated so that it is clear when the wishes were made, and if there is another Will, whether it was made after to supersede it.

If the above conditions are not met then a Will would be considered invalid.

Wills should be written carefully

If the above conditions are met then the Will would be considered valid, however it could still be contested (challenged).

For example the law will not recognise step-children unless they are named in the Will, or it is clear that the definition of children extends to stepchildren. This is important because if a person can demonstrate that they have a financial need and were maintained by the person who has left the Will, then they would be in a position to contest the Will if they were not named in it.

Additionally if you have promised something, such as money or property, to a person and they have relied on that promise, and then you fail to include this instruction in your Will, the person could contest the Will if they suffer a detriment as a result of not receiving what was promised.

If a Will is badly written, inaccurate, or makes a person’s wishes unclear then it may cause distress to the surviving loved ones and end up being contested.

Choose executors wisely

It is important to note that a witness, or the married partner of a witness, cannot benefit from a Will and so they should not be listed as a beneficiary of the Will.

The people chosen to be Executors of a Will must be suitable and you should have confidence that they have the character and abilities to administer the Estate correctly and not fraudulently.

When to seek legal advice

Your Will is an important document and when set out correctly it can remove at least a little of the worry and distress that your loved ones will be experiencing at a very difficult time. If your situation is not straightforward however, it would be advisable to seek advice from a professional.

For example:

  • if you share a property with someone who is not your husband, wife or civil partner
  • if you have property overseas
  • if you have a business
  • if you have a dependant who cannot care for themselves

Notes

You can find a Checklist of things to include in a Will here: https://www.rdcsolicitors.co.uk/latest-news/post/2022/05/10/what-should-i-include-in-my-will  

If you do not have a valid Will when you die then your estate will need to be distributed by the rules of intestacy.

If you need assistance in writing a new Will or amending an old one, then please get in touch with us on Bingley 01274 723858, Ilkley 01943 601173 or Bradford 01274 735511.

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