Wills are not straightforward legal documents. Just one mistake can make a Will invalid, and it could possibly fail after you pass away, which could change who benefits from your estate. Luckily, there are ways to avoid these mistakes and ensure your Will remains valid.
Reasons A Will Can Fail
When a Will fails, that means it has been found invalid. This can be something small, but it can also be disputable, meaning people can contest it. Wills can be found invalid for several reasons:
- Testamentary capacity – having testamentary capacity means that, when you are making your Will, you understand that your beneficiaries will receive your assets, the implications of who you include as beneficiaries, and your actions. If there are any doubts about your mental state, your GP or another medical professional may step in to attest to your capacity and determine whether you can write your Will. In the case of elderly or seriously ill testators, written medical evidence of their capacity may be collected in case there is a contest to the Will in the future.
- Improper signing of the Will – Wills must be signed in by two witnesses and the testator. You have to sign in front of the witnesses, and the witnesses themselves have to be of sound mind, over eighteen, and unrelated to you or your beneficiaries. Your witnesses must also not be a beneficiary, which many people may not know. However, if your Will is witnessed incorrectly, it can be contested and may fail. Additionally, if it is found that one of your witnesses was also a beneficiary, that particular gift will fail, although the rest of your Will may remain valid.
- Revocation – a Will can be both accidentally and intentionally revoked. It is often accidentally revoked by being damaged or lost by the testator. It may also be revoked when the testator gets married, as marriage invalidates all previous Wills created.
- Undue influence – you must create your Will voluntarily, with no outside influence from anyone else. It could be invalidated if people think you were unduly influenced at the time of writing.
What Happens Without a Will?
If a Will is found to be invalid, the courts may either revert to an older Will you may have created or distribute your estate according to the rules of intestacy. When no previous Will exists, the intestacy rules will be followed, and your estate may not go to the people you intended.
The rules of intestacy mean that you have no control over where your assets go. If married, your spouse will receive the first £270,000 of the estate, plus half of anything remaining. If you have a partner but are not married, they are not entitled to inherit anything.
Having a Will in place avoids this risk and allows you to leave gifts to the people you choose. It is essential to ensure your Will is valid so your executor can fulfil your wishes.
How to Make Sure Your Will is Valid
For a Will to be valid, you must have full mental capacity at the time of writing, it must be signed by two witnesses who will not benefit from your estate, and it must have been made voluntarily with no coercion or pressure from anyone else.
Someone can sign a Will on behalf of those with an illness such as dementia or Alzheimer’s; however, they must still have the capacity to create the Will, or it will be invalid. Medical practitioners can attest to their capacity to prevent the Will from being challenged or invalidated in the future.
During the Covid-19 pandemic, changes were made to how Wills can be witnessed. Previously, this had to be done in person, but this can now be done without being physically present. For example, you could witness a Will over a video call or from a short distance away, such as through a window.
Storing Your Will
After your Will is written and signed, keep it in a safe place and ensure that a few people know where it is. This makes it easier for your loved ones to begin administering your estate after you pass away, as if they cannot find your Will, the process will be delayed. You could keep it with:
- Your solicitor
- A Will writing service
- The Probate Service (in England and Wales)
- In a safe place at home
Many people are tempted to store their Will in a bank safety deposit box; however, unless someone else has access to it, this could backfire, as the bank will not be able to open the deposit box until the executor has obtained probate. Probate cannot be granted without the Will, so ensure it is stored elsewhere!
Another thing to remember when storing your Will is to never attach any other documents to it. Stapling or using a paperclip to secure an additional document will leave a mark, raising questions about whether part of the Will or an amendment is missing. Investigating this can be time-consuming and expensive and can delay the administration of your estate.
Starting Your Will
If you don’t have a Will yet, the best time to write one is now! Without one, your loved ones may not be provided for in the future, and you could miss out on Inheritance Tax benefits.
Contact the Planning Bee today to learn more about our Will writing services and how a trust can benefit you and your loved ones. We will walk you through the entire process of creating your Will and ensure that it meets your needs precisely.