What Makes a Will Invalid in the UK?

When Does a Will Become Invalid?

• Not made in writing

A will needs to be written down for an executor to be able to begin proceedings. If it’s not, then the authorities won’t consider it a legitimate will and it’ll almost certainly be challenged.

A written will is a requirement for several reasons. It helps prevent fraud – another reason why a will may be contested. It also shows testamentary intent. In other words, the will-writer states that this document is their last will and testament.

So, if you write a note to a friend promising them the house or car or their favourite painting, they may have a claim, but the court is more likely going to find that the note isn’t a genuine confirmation of your final wishes. For this reason, most people use a solicitor or will-writer, since getting the wording right is essential for a valid will.
 

• Not witnessed

A will needs to be signed by both the one making it and two witnesses, together at the same time (although video-witnessing is temporarily legal).

Witnesses and their spouses can’t inherit from your will, making them technically independent. If a will is challenged or improperly executed, witnesses will have to make a statement. They don’t need to read the will – observing you sign it, then signing it themselves, is fine.

Remember: a will doesn’t need to be dated for it to be valid, but it won’t invalidate it if you do so.
 

• Lacking legal or testamentary capacity

‘Of sound mind and body.’ We’ve heard the phrase enough times on TV before – and what it really means is that you have to mental capacity, or ‘testamentary capacity’, to write your will. It’s not enough for you state your intent, you have to understand what it all means, too.

If the person making the will (known as a testator) is thought to be lacking testamentary capacity, then the will is invalidated. It will also call into question how to divide up the estate among beneficiaries.

This is one reason why, if you’re writing a will, you should consider using your GP as a witness. That way, if the will is challenged after you die, they can step forward and confirm that you knew what you were doing.

You should also be of legal capacity. This means you’re 18 or over and allowed to control your own assets. Someone under a Court of Protection deputyship, for instance, wouldn’t be allowed to make a will without the decision-making deputy’s permission.
 

• Made ‘under duress’

A will is a voluntary process; you have assets and an estate, and you wish to pass them onto your beneficiaries. Despite what we see in the movies, a will can’t be grudgingly signed by the testator under the watchful gaze of a wicked, scheming relative who stands to inherit the lot.

And if it were made under duress – that is, the will was signed under force or threat – it wouldn’t be a legal document.

Witnesses play a role here. Should the will be contested, the witness can state that the testator made and voluntarily signed it.
 

• Photocopied, faked, or altered

A valid will is an original will. So, once made keep it safe.

Photocopies, while fine for your records, aren’t official documents and won’t be accepted. Likewise, the will must show no signs of tampering – whether it’s changing a name or tweaking the share of the estate in someone else’s favour. The smallest hint of a forgery is enough to call into question the entire contents of a will.

For this reason, it’s advisable not to staple your will together. Should the staple work its way out, it may appear that pages are missing (or have possibly been nefariously stolen by that scheming relative again).
 

Does getting married invalidate a will?

Congratulations, you’ve just got married. Now, any existing will you had is revoked. That means it’s time to make a new will.

If you don’t, then the rule of intestacy applies. This lets the state determine who should inherit if you die without a valid will. In most cases, your spouse will inherit everything, which may leave your other beneficiaries out in the cold.

You don’t have to wait until you’re officially married to draft an updated will. Just make sure that your will includes the words ‘in anticipation of marriage to’ or ‘in contemplation of marriage to’ your soon-to-be spouse.
 

Does getting divorced invalidate a will?

If you write a will naming your spouse as a beneficiary, then later divorce, that will is still valid – sort of. It’s not quite as clear cut as simply reverting to a previous will. Unless you add them in a new will, they can no longer benefit from your will, nor act as an executor or trustee.

Once your Decree Absolute is pronounced, the courts treat the ex-spouse as if they’re dead. That’s why it’s so important to make a provision in the will stating what should happen to assets originally bequeathed to your partner in the event of their death.

If you leave everything to your spouse, then the rule of intestacy once again applies. And since, in the eyes of the law, your former spouse is dead, it materially changes who benefits from your will.

Whenever your status changes – whether it’s a relationship change or a financial one – it’s best to chat to a solicitor about the possibility of revising your will.
 

Does a change of address invalidate a will?

Though not a legal requirement, your will should feature an up-to-date address, otherwise there’s a risk that it may be considered invalid. You could also use a ‘care of’ address if you move around a lot or you’re often at a different address much of the time, like a university.

This doesn’t mean you need to rewrite your entire will. But you must add a codicil – a legal document that acknowledges a change to the original will.

A solicitor or will-writer can also advise you on using a codicil to make other small changes to your will. However, it’s best not to have too many. As with the will, any codicil needs to be signed and witnessed.
 

What happens when a will is invalid?

When a will is declared invalid, there are several options open to the courts:

• Revert to an older will

If an earlier, valid will exists, the authorities may choose to honour it. However, it could be open to a challenge.
 

• Rule of intestacy

In many cases, especially when no previous will exists, the testator is treated as if they died intestate, and the estate is distributed according to the rule of intestacy.
 

How to make sure your will is valid

There are a handful of requirements in order to make sure your will is valid:

• You must be 18 or over
• You must voluntarily make the will
• The will needs to be in writing
• It must be signed by you and two witnesses at the same time

Any will you make must meet these basic standards.

If you’re concerned about the validity of a will, it’s worth discussing your situation with a professional solicitor or will-writer.