When Does a Will Become Invalid?
Not made in writing
A will needs to be written down for an executor to begin dealing with the estate. If it is not in writing, the authorities will not consider it a legitimate will and it is highly likely to be challenged.
A written will is required for several reasons. It helps prevent fraud, which is another common reason a will may be contested. It also shows testamentary intent. In other words, the person making the will is clearly stating that the document is their last will and testament.
So, if you write a note to a friend promising them the house, car, or favourite painting, they may have a claim, but a court is more likely to decide that the note is not a genuine confirmation of your final wishes. For this reason, many people use a solicitor or will-writer, as getting the wording right is essential for a valid will.
Not witnessed
A will needs to be signed by the person making it and by two witnesses, all together at the same time.
Witnesses and their spouses cannot inherit under the will, which helps keep them independent. If a will is challenged or found to have been improperly executed, witnesses may need to make a statement. They do not have to read the will. It is enough for them to see you sign it and then sign it themselves.
It is also worth remembering that a will does not need to be dated to be valid, although adding a date is still sensible.
Lacking legal or testamentary capacity
The phrase “of sound mind” is often used when talking about wills. In practice, this means you must have mental capacity, also known as testamentary capacity, to make a valid will. It is not enough simply to state your wishes. You must understand what your will does and the effect it will have.
If the person making the will, known as the testator, is believed to lack testamentary capacity, the will may be declared invalid. That can also create further disputes about how the estate should be divided.
This is one reason why some people consider asking their GP to act as a witness. If the will is challenged after death, they may be able to confirm that the person understood what they were doing at the time.
You must also have legal capacity. This usually means being 18 or over and being entitled to manage your own affairs. Someone under a Court of Protection deputyship, for example, may not be able to make a will without the appropriate authority.
Made ‘under duress’
Making a will is a voluntary process. If someone is forced, pressured, or threatened into signing a will, it is not likely to stand as a valid legal document.
Duress can take different forms, but the key issue is whether the person made the will freely. If they did not, the will can be challenged and set aside.
Witnesses can be important here too. If the will is contested, they may be able to confirm that the person made and signed it voluntarily.
Photocopied, faked, or altered
A valid will should be the original document, so once it has been made, it is important to keep it safe.
Photocopies may be useful for your own records, but they are not usually accepted as official documents. In the same way, a will should show no sign of tampering. Changing a name, amending gifts, or altering shares of the estate can call the whole document into question.
Even a small suggestion of forgery or interference may be enough to undermine the will. For that reason, it is often advised not to staple the will together. If staples are removed, it can create suspicion that pages are missing or have been changed.
Does getting married invalidate a will?
Yes, in most cases, marriage revokes an existing will. That means if you get married, you should make a new will as soon as possible.
If you do not, then the rule of intestacy may apply. This means the law decides who inherits your estate if there is no valid will. In many cases, your spouse could inherit everything, which may leave other intended beneficiaries with nothing.
You do not have to wait until the wedding itself to update your will. A will can still remain valid after marriage if it clearly says it is made “in anticipation of marriage to” or “in contemplation of marriage to” your intended spouse.
Does getting divorced invalidate a will?
Divorce does not automatically invalidate a will, but it does affect how it operates. If your former spouse is named as a beneficiary, executor, or trustee, the law generally treats them as though they had died once the divorce is final.
That means they can no longer usually inherit under the will or act in those roles unless you specifically include them again in a new will.
This is why it is so important to include substitute beneficiaries or backup arrangements in your will. If everything is left to your spouse and you later divorce, the estate may end up being distributed in a very different way from what you intended.
Whenever your circumstances change, whether through a relationship change or a major financial change, it is sensible to speak to a solicitor about revising your will.
Does a change of address invalidate a will?
A change of address does not automatically invalidate a will, but it is a good idea to keep your address up to date so there is no confusion later.
You may not need to rewrite the whole will. In some cases, you can add a codicil, which is a legal document used to record a change to the original will.
A solicitor or will-writer can also advise on using a codicil for other small updates. However, it is usually best to keep codicils to a minimum. As with the will itself, any codicil must be properly signed and witnessed.
What happens when a will is invalid?
When a will is declared invalid, there are several possible outcomes depending on the circumstances and what other documents exist.
Revert to an older will
If there is an earlier will that was validly made, the authorities may decide to rely on that version instead. However, an older will can still be challenged depending on the facts.
Rule of intestacy
In many cases, especially where there is no earlier valid will, the person is treated as having died intestate. Their estate is then distributed under the rule of intestacy rather than according to their personal wishes.
How to make sure your will is valid
There are a few basic requirements that help make sure your will is valid:
- You must be 18 or over
- You must make the will voluntarily
- The will must be in writing
- It must be signed by you and by two witnesses at the same time
Any will you make needs to meet these basic standards.
If you are concerned about the validity of a will, it is worth discussing your situation with a professional solicitor or will-writer.