Invalid wills

Invalid wills: Inheritance solicitor Sabrina Morey looks at what makes a will invalid.

You would be forgiven for thinking that if a will is written on the back of a napkin it won’t be legally valid. But you’d be wrong. It comes as a surprise to most people when they discover that a will can be valid and legally enforceable, even if it is written on the back of a napkin!

Section 9 of the Wills Act states that in order to be valid, the will must be:-

  1. in writing (this could be typed or handwritten) and signed by the person making the will, or by some other person in their presence and by their direction;
  2. the person making the will must intend by signing the will that it will have effect;
  3. the will must be acknowledged or signed in the presence of two or more witnesses present at the same time; and
  4. each witness must attest and sign the will, or acknowledge the signature of the person making the will in their presence.

So, a will written on the back of a napkin could be capable to complying with these requirements. This doesn’t mean, of course, that we would recommend it, as it could lead to contentious issues. For while the law might allow a napkin to be used, it can be extremely fussy in other respects of will preparation. Any material breach of the Act and there is a real danger of the will being declared legally invalid.

One of the most common reasons for invalid wills is a failure to execute them correctly. As indicated above, there are strict rules governing how a will needs to be signed by the maker of the will and their two witnesses. Failure to comply with these rules can result in the will being legally invalid.

We would always therefore advise that wills should drafted by a legal professional in conventional form, so that the will is legally valid. This also allows proper tax advice to be given. In addition, it may sometimes be beneficial, especially where family members are excluded from a will to prepare a separate ‘Letter of Wishes’. Although these are not legally binding documents, they can assist the executor(s) (the person or persons with authority to manage the estate once someone has passed away) to carry out a deceased’s wishes.

Furthermore, having a will drafted professionally can reduce other risks of litigation arising from a handwritten or homemade will. While having a will professionally drafted does not remove all risk of legal challenge, that risk is much higher with DIY wills. Here are some of the most common disputes that can arise:

  1. Inheritance (Provision for Family and Dependants) Act 1975 claims;
  2. Challenges to the validity of the will on the grounds of a lack of mental capacity, undue influence, fraudulent calumny, and a lack of knowledge and approval;
  3. Disputes between executors and trustees; and
  4. Rectification and interpretation of a will.

Our wills and probate team can assist you with preparing a will, managing a person’s estate once they have passed away, and can advise you regarding asset protection and succession planning. In addition, our contentious probate solicitors can assist you with all aspects of inheritance law including invalid wills.

If you require any assistance with invalid wills or any other issue dealt with in this article, please do not hesitate to get in touch with us by calling our free helpline on 0333 888 0404 or emailing us at [email protected].

Picture of Sabrina Morey

Sabrina Morey

Picture of Sabrina Morey

Sabrina Morey

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