In England and Wales the general rule is that you are free to decide how you would like your estate to be distributed after your death, and you can direct that distribution by making a will. However, when making a will (and after) there are some formalities which need to be considered to ensure that the will is valid. An invalid will is treated as though it does not exist, meaning that your estate would instead pass either under the terms of an earlier will or the intestacy rules, which may not reflect your wishes or be the most tax efficient way of handling your estate.
It is therefore important to know the reasons for which a will might be invalid.
Improperly signed wills
A will may be invalid if it was not properly signed or was not signed at all by the deceased.
Section 9 Wills Act 1837 requires that a testator must sign their will, with the intention that their signature would give effect to their will, in the presence of two witnesses. If any of those requirements have not been fulfilled, the will would be invalid.
A will being invalid as a result of improper execution may be accidental (e.g. the deceased did not realise they needed two witnesses, and only had one or none) or purposeful (e.g. the signature on the will was forged by someone other than the deceased).
You should also watch out for who is signing your will. Your witness must have legal capacity, so for example asking someone who is under 18 (and deemed therefore not to have capacity to understand what they are signing), would invalidate your will. This is because if you do not have two independent witnesses witness your signature on your will, it will be deemed to not have been “duly executed”.
Many people would ask a beneficiary or the spouse or civil partner of a beneficiary to witness their will as these are likely to be people you see regularly. Whilst this would not render the whole will invalid, it would mean that the beneficiary in question forfeits the gift made to them under the estate. If that person would have significantly benefited from your estate, or was the sole beneficiary, this could have a major impact.
Capacity to make a will requires the testator to:
Understand the nature of the will they are making and its effects, including the impact on the intended beneficiaries;
Understand the nature and extent of the property they are giving away;
Be able to understand potential claims against the estate; and
Not have a disorder of the mind which affects their sense of right and wrong, or their ability to exercise their mental faculties.
The question of capacity can be complex, and often a doctor is required to certify that a person making a will has the legal capacity to do so. If the deceased did not have capacity, their will could not be valid.
Want of knowledge and approval
Claims that a will is invalid as a result of want of knowledge and approval occur when deceased did not understand the effect of their will, either because they did not understand the extent of their estate or the identity of people would benefit from it. This is known as ‘want of knowledge and approval’ and may cause the court to investigate the deceased’s will and the circumstances surrounding it.
Want of knowledge and approval can, but does not always, arise as a result of capacity issues. It may also result where, for example, the testator signed a document without realising it was a will, or if the testator was illiterate, did not read the language their will is written in, or partially sighted or blind, and the will was not read aloud to them.
Undue influence is an equitable claim, which is a category of constructive fraud. Undue influence occurs where the testator was forced or unfairly persuaded to change their will. These cases are often difficult to prove and usually arise where there is a set of suspicious circumstances often including:
A person who is or may be vulnerable to persuasion either because they lack capacity, fear being abandoned, or are dependant on the person who becomes the primary beneficiary of their estate;
Sudden and unexplained changes to a will, including removing or adding beneficiaries without obvious reason; and
Often where the testator does not use a solicitor or changes the solicitor they use to write their will despite having a longstanding relationship with a different firm/solicitor.
Undue influence must amount to more than mere suggestion or persuasion and may include cases where the benefiter:
Repeatedly badgered the testator to make a gift to them (for example, insisting they needed to money to pay off debts);
Spread malicious lies or rumours about other beneficiaries to persuade the testator to disinherit them;
Pamper or befriend an elderly friend or family member with the intention of being included in their will; or
In extreme cases, blackmail or threats including violence or humiliation (e.g. threatening to ruin the testator’s reputation).
There are other, less nefarious, reasons why a will may be invalid including where there was a valid will which later becomes invalid. Such cases include a marriage after a will (where the will was not made in contemplation of marriage), accidental revocation by making a will in another country which revokes your English and Welsh will, or accidental destruction of your original will may be deemed as a revocation meaning the will could no longer be relied upon.
If you have any questions regarding will validity, please contact Charlotte Braham on 01494 893529