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.
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.
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.
Mistake in will leads to Supreme Court dispute
A mistake in a will has led to a family disagreement which has now led to a Supreme Court dispute.
It is a shame that Alfred and Maureen Rawling's kind heartedness has led to this awful disagreement. Terry Marley, a school friend of the couple's son Michael, was taken in as a teenager and treated for over 30 years as a member of the family, although he was never formally adopted.
Mrs Rawling died in 2003, with Mr Rawling's death occurring in 2006. At that time, it was revealed that Terry had been left the entire estate, which included £70,000 and the £400,000 family home. The couple's real sons were understandably upset at this discovery and it was at this time, it emerged that Mr and Mrs Rawling's solicitor had mistakenly allowed them to sign each other's will, so there was no valid testator signature, making the wills technically invalid.
Although Terry offered to share the £70,000 among the three "sons", the other two declined, insisting that if the wills were indeed valid, then the estate would need to be classed as intestate, and they alone would automatically be the beneficiaries.
A lengthy court case then began, which last week saw Terry's request to have it heard in the Supreme Court, granted.
So far then, the probate process has taken seven years, with all assets remaining frozen until a legal decision has been reached.