invalid will

What Makes A Will Invalid?

Whether you have decided to use a solicitor to help write your will, you are going along the DIY route, or you have chosen a will writing specialist to assist, it is vitally important that your will is scrutinised and checked to ensure that, when the time comes for it to be executed, it is in fact valid.

If a will is not considered valid, the executor for the estate won’t be able to obtain the grant of probate, and without that, nothing can happen with the estate, and eventually the testator will have been deemed to have died intestate, and the intestacy rules will come into play. This could mean that completely different people to those named in the will end up inheriting the estate.

A recent investigation carried out by the Legal Services Consumer Panel suggests that as many as one in five wills are invalid. This could come as a surprise to many people, but it is important to be aware of the facts and to make doubly sure that your will is valid.

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The most common reason for a will to be seen as invalid is if it has not been signed and/or dated by the testator in front of two witnesses who also need to sign the will. If any of the three people mentioned above have not signed the will, it is invalid. If the testator signs the will out of the presence of the witnesses and then asks the witnesses to sign after this has happened, the will will also be invalid.

The will presented must also be the original document, and not a copy. If the original cannot be found, the copy will not be executed, and will be called invalid, even if it is signed correctly. The same is true is the will has been altered in any way, or thought to have been tampered with.

If the will is not the last one that the testator made, it is invalid as the most recent wills is the only one that will be taken into account.

More reasons for the wills being invalid include the testator making the will under duress, or through undue influence (ie they were forced to name beneficiaries whom they did not intend to name). And if the will was written before a marriage, remember that the marriage actually revokes any will made previously, and a new one will need to be written. It could be exactly the same as the one that was written before the marriage, but it must be re-done all the same.

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If the testator was not of sound mind and did not therefore have the capacity to understand what they were doing, or if they did not have the proper legal capacity to write a will, it will be invalid.

Finally, if a will neglects to mention some assets, in some circumstances that can mean that the entire will can fail.

An invalid will can cause major disruption and problems when it comes to probate and the estate of the deceased, and it can also cause many emotional upsets too. This is why it is so important to have your will checked by a professional to ensure that there is nothing within it that could cause it to be called invalid after you have died. 

Clerical error led to Supreme Court for invalid will

Clerical error led to Supreme Court for invalid will
 
You may remember in Marley v Rawlings [2014], a clerical error led to a couple's wills being declared invalid.  Mr and Mrs Rawlings both signed wills, leaving everything to each other, and a gift to Terry Marley, who they had treated as their own son.  The couple's biological sons were not included in the wills.
 
 
The problem arose, when the surviving partner, Mr Marley, died.  It was only discovered at this point, that the solicitor who had drawn up the wills, had made a serious error.  He had, in fact, mistakenly given each person when they were alive, the other's will to sign, effectively making both of the wills invalid and therefore in essence, leaving everything to the couple's two biological sons.
 
 
 
Predictably, a drawn out legal battle ensued, with the Court of Appeal still ruling that the wills were invalid.  It was not until a few days ago that the Supreme Court finally decreed that the wills could be upheld.
 
 
 
Why?  There are detailed criteria given in section 20 of the Administration of Justice Act 1982, to ascertain whether a will is a valid document.  It was initially thought that the Rawlings' wills did not fulfil this criteria.  However, it was finally decided that Mr Rawlings had made his intentions and wishes abundantly clear and that it was of course a clerical error that had caused the problem.
 
 
 
"Clerical error" is also discussed in section 20, but this term remains very ambiguous, usually relating to incorrect text. It may be time then, for the terminology in this section of the lawbooks to be made much clearer, so that individuals such as Terry Marley, are not left with a hefty legal bill, whilst legal professionals try to decipher and interpret the law. 

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