What is a Will
A will is a legal document that dictates how a person’s property should be distributed after they die. It is an important document for anyone with assets to protect. However, not all wills are valid. There are several things that can make a will invalid. This article will discuss the most common reasons for a will to be invalid.
What Makes a Will Invalid?
Construction errors
One of the most common reasons for a will to be invalid is because of construction errors. This can include things like incorrect wording, incorrect signatures, or missing information. If part of the will is not valid, the whole will may be invalid.
Undue influence
Another common reason for a will to be invalid is if someone was unduly influenced into making the will. This means that someone pressured or manipulated the person making the will into including certain provisions in the document. If it can be shown that someone exerted undue influence over the deceased, the will may not be valid.
Insufficient Testamentary Capacity
A person must be of sound mind and body to make a valid will. If the person making the will was not of sound mind or body at the time the will was made, the will may be invalid. This can include things like mental illness, senility, or intoxication.
Incompetence
If the person making the will is not able to understand what they are doing, or if they cannot communicate their wishes, the will may be considered incompetent. This can include minors or those with mental illness.
Fraud
If someone tricks the person making the will into signing it, or if they forge the deceased’s signature, the will may be considered fraudulent. In this case, the will is not valid and any property distributed by it would be returned to the rightful heirs.
Duplicate wills
If a person has made multiple wills, and one of them is found after the person’s death, the will that is found later is considered to be the valid will. This is true even if the other wills were signed before the valid will. This is because, in most cases, the last will signed by a person is considered to be their final wishes.
A will Disemfranchising Dependants
A will disenfranchising dependants is a will that does not provide for the dependant children of the deceased. If a will does not provide for the dependant children, they may be able to contest the will and receive a portion of the estate. This is because they are considered to be legally entitled to some inheritance from their parent.
By law, children and generally, dependants are to be provided for in a will. If they are not, there is a good chance that the will could be contested and courts are likely to rule in the dependants’ favour.
Not Having the Proper Witnesses
In order to make a will valid, it must be signed by two witnesses. The witnesses cannot be beneficiaries of the will and they must be 18 years or older. If the will does not have the proper signatures from two witnesses, it is considered invalid.
Cause of Death
The cause of death can also affect the validity of a will. If the person making the will died from a cause that invalidates wills, such as suicide or murder, their will is considered invalid. This is because, under these circumstances, the person was not of sound mind or body when they made the will.
Equally, it is illegal for someone to benefit from an illegal act in instances where one of the beneficiaries of the will are suspected of causing the death of the testator.
Non-Conformity to Legal Provisions
A will must conform to the legal provisions in order to be valid. This includes things like the required wording and signature, as well as meeting the age requirements. If a will does not meet these requirements, it is considered invalid.
If a will is not valid, the property within it will be distributed according to the laws of intestacy. This means that the property will be distributed to the deceased’s closest relatives, in accordance with the order of priority set out by law. If there are no close relatives, the property will go to the government.
If a will is not registered is it valid?
It is not mandatory to register a will for it to be valid. However, if a will is not registered it may be more difficult to prove that the will is valid.
The court may not accept a will that is not registered as evidence. If there is a dispute about the will, the court may rule in favour of the party who can provide evidence that the will was properly registered.
It is therefore important to register a will with your local land registry office. This will ensure that the document is legally recognized and that it will be more difficult for someone to challenge its validity.
What to Do When Left out of a Will
A will determines how a person’s assets should be distributed after they die. If you think you have been left out of a will, there are a few steps you can take.
Testamental Freedom
Every person has the right to leave their property to whomever they choose. This is known as testamental freedom. A will cannot be forced on someone who does not want it. Therefore, when left out of a will, it is important to first appreciate that everyone including your deceased relative has testamental freedom and therefore can decide how their assets and property can be divided.
Protection of Children and Dependants Against Exclusion from Wills
Under English law, children and dependents of a deceased person cannot be completely left out of a will. There are certain protections in place to ensure that they at least inherit some of the deceased’s assets.
Children and spouses not sufficiently catered for in a will may be able to make a claim against the estate. This is done by applying to the court for what is called “reasonable provision” from the estate.
The court will take into account a number of factors when making its decision, including the needs of the children and any other dependents, and the size of the estate.
It is important to note that these protections only apply to children and dependents who were living at the time of the deceased’s death. If a child or spouse has been estranged from their parent, they will not be able to make a claim against the estate.
Accidental Exclusion from a Will
Accidental exclusion from a will can happen when someone is left out of a will due to a mistake. This could be because the person was not listed as a beneficiary, or because they were mistakenly left out of the will altogether.
If you have been accidentally excluded from a will, you may be able to make a claim against the estate. The court will take into account factors such as how much you were expected to inherit and how close you were to the deceased.
It is important to note that these protections only apply if you were unintentionally left out of the will. If you knew about your exclusion from the will and did not take any steps to correct it, you will not be able to make a claim against the estate.
Willful Exclusion from a Will
Willful exclusion from a will is when someone chooses to leave someone out of their will on purpose. This could be because the person was not listed as a beneficiary, or because they were purposely left out of the will altogether.
If you have been willfully excluded from a will, you will not be able to make a claim against the estate. This is because willful exclusion from a will is considered an intentional act and is therefore not covered by English law.
In some cases, the deceased may mention someone in the will and expressly exclude them from receiving anything. This is known as a “hanging gift”. A hanging gift is still considered an intentional act and the person who has been left out will not be able to make a claim against the estate.
This may be for reasons including, a provision made for them therefore no reasonable provision is required, they have been left a significant amount of money elsewhere out of the will, or there are other beneficiaries who are more deserving or the deceased had reservations due to strained relationships, conflicts, abandonment or estrangement.
How to Contest a Will and Win
If you believe that your loved one’s will is invalid for any of the reasons listed above, you may be able to contest it in court. Factors to Consider When Contesting a Will.
However, there are a few things that you can do to strengthen your case:
Who Can Contest a Will? Locus Standi
In order to contest a will, you must have what is called “locus standi”. This means that you must be able to prove that you have a legal interest in the will. This could be because you are a beneficiary of the will, or because you are the executor of the estate.
If you do not have locus standi, you may still be able to get permission from the court to contest the will. This is done by filing an application and providing evidence that shows why you should be allowed to contest the will.
There are also other people who can contest a will, including:
- The deceased’s spouse or civil partner
- A child or grandchild of the deceased
- Dependant of the Deceased
- The deceased’s parents
- The executor of the will
- A creditor of the deceased
-Someone who has been appointed by the court to represent the interests of a child or dependent of the deceased.
The Decision to Contest a Will
Before you decide to contest a will, it is important to weigh up the pros and cons. Contesting a will can be a long and expensive process, and there is no guarantee that you will win.
However, if you believe that your loved one’s will is invalid for any of the reasons listed above, it may be worth speaking with an experienced lawyer about contesting it in court.
Firm Up Your Grounds and Locus Standi
In order to contest a will, you must have locus standi. This means that you must be able to prove that you have a legal interest in the will.
There are several ways to do this:
-If you are a beneficiary of the will, you can provide evidence that shows that you were intended to receive a gift under the will.
- If you are the executor of the estate, you can provide evidence that shows why you should be appointed as executor.
- If you are someone who has been left out of the will intentionally, you can provide evidence that shows why you should be included in the will.
- If there is something wrong with the way the will was made, you can provide evidence that shows why the will should not be upheld.
If you are thinking of contesting a will, it is important to have strong grounds and to be able to prove that you have a legal interest in the will. Speak with an experienced lawyer if you need help preparing your case.
There are several things that can make a will invalid. The most common reasons are:
- The deceased did not have the mental capacity to make a will.
- The will was made under duress or undue influence.
- The deceased was coerced into making a new will.
- The will was forged or fraudulent.
- The deceased was not aware of the contents of the will.
- The will was not properly signed or witnessed.
If you believe that your loved one’s will is invalid for any of the reasons listed above, you may be able to contest it in court.
Get a Copy of the Will
If you are thinking of contesting a will, the first step is to get a copy of the will. This will allow you to review the contents of the will and determine if there are grounds for contesting it.
You can get a copy of the will by contacting the executor or by applying to the court.
It is important to note that not everyone has a right to see a copy of the will. The executor may choose to withhold a copy from certain people, such as creditors or family members who are in dispute with each other.
Find a Lawyer
If you are thinking of contesting a will, it is important to speak with an experienced lawyer. They can help you prepare your case and give you advice on the best way to proceed.
File a Will Challenge
If you decide to contest a will, the next step is to file a will challenge. This is done by filling out an application and providing evidence that shows why the will should not be upheld.
The court will then review your application and make a decision on whether or not to allow the will to be contested.
It can take several months for the court to make a decision, so it is important to start this process as soon as possible.
Consider Alternative Dispute Resolution
Legal suits and battles are public, and adversarial and may end up tarnishing the name of the deceased, and your family and end up straining relationships. Equally, the legal process and probate contest processes may take time and cost a lot of money in legal fees.
Alternative Dispute Resolution (ADR) processes, such as mediation or arbitration, may be a better option for you. ADR is confidential, faster and less expensive than going to court.
Remember, you can always approach the courts in the event alternative dispute resolution fails.
How to Make a Valid Will
If you want to make sure your will is valid, there are a few things you need to remember:
- You must be 18 years or older and of sound mind when you make the will.
- The will must be in writing and signed by the testator (the person making the will).
- The will must be witnessed by two people who are not beneficiaries of the will.
- If a beneficiary witnesses the will, it must be signed by two other independent witnesses
- Make sure the testator is of sound mind when making the will.
- Include a clause that disposes of any property that is not specifically mentioned in the will.
- Include a residuary clause to ensure that all your property is distributed according to your wishes.
- Make provisions for all dependants, including minor children and pets.
- Keep the will up to date, and review it regularly.
- Make sure the administrator is not a beneficiary of the will, and name an alternate in case the original choice is unable to serve.
- Include a clause that revokes all previous wills.
If you follow these guidelines, your will should be valid and will be upheld by the court.
Types of Wills
There are several different types of wills. The most common type of will is a handwritten will, also known as a holographic will.
A holographic will is a will that is handwritten by the person making the will. It must be completed in the testator’s own handwriting and dated and signed by the testator. There are also valid oral wills and statutory wills.
An oral will is a will that is made orally, typically to someone who is not a beneficiary under the will. A statutory will is a type of Will made pursuant to statute, such as in cases of intestacy or where there is no valid Will.
A detailed typology of wills is described here below:
Living Will
A living will, also known as an advance healthcare directive, is a document that sets out a person’s wishes for their medical care in the event that they are no longer able to make decisions for themselves. A living will is not the same as a will, but it can be used to appoint an attorney to make decisions about medical treatment on the testator’s behalf if they are unable to do so themselves.
A living will can be revoked or amended at any time by the person making it. It is important to keep your living will up-to-date and let your family know where it is kept.
If you do not have a living will and you become incapacitated, your family will have to make decisions about your medical care based on their own understanding of what you would have wanted. This can lead to disagreements and conflict, which is why it is important to have a living will in place.
Testamentary Trust Will
A Testamentary Trust Will is a will that sets up a trust to hold the testator’s assets. The trust can be used to provide for dependants or to protect the assets from creditors. The trust can also be used to avoid probate.
There are several types of Testamentary Trust Wills, including:
Fixed trust:
A fixed trust is a type of testamentary trust that pays out a fixed amount of money each year to the beneficiaries. This type of trust is often used to provide for dependants who are not able to support themselves.
Discretionary trust:
A discretionary trust is a type of testamentary trust that gives the trustee discretion over how much money each beneficiary receives from the trust. This type of trust is often used to protect the assets from creditors or to avoid probate.
Hybrid trust:
A hybrid trust is a combination of a fixed trust and a discretionary trust. This type of trust allows the trustee to pay out a fixed amount of money each year to some beneficiaries while giving the trustee discretion over how much money other beneficiaries receive.
Unitrust:
A unitrust is a type of testamentary trust that pays out a fixed percentage of the value of the trust assets each year to the beneficiaries. This type of trust is often used to provide for dependants who are not able to support themselves.
A Testamentary Trust Will can be revoked or amended at any time by the person making it. It is important to keep your Testamentary Trust Will up-to-date and let your family know where it is kept.
Pour-Over Will
A pour-over will is a type of will that is used to transfer assets from a deceased person’s estate into a living trust. The purpose of a pour-over will is to ensure that all of the deceased person’s assets that are not directly allocated or bequeathed to beneficiaries are transferred to the trust. If there is no living trust, the assets will be distributed according to the terms of the will.
A pour-over will can be used to transfer any type of asset, including real estate, bank accounts, and stocks. It is important to note that a pour-over will does not replace a living trust; it simply transfers assets from the estate into the trust.
Simple Will
A simple will is a type of will that is used to distribute property and assets after a person’s death. A simple will can be used to distribute property to beneficiaries, name an executor, and designate a guardian for minor children.
A simple will is typically less complicated than other types of wills and is therefore easier to execute. It is also less expensive to draft and update. However, a simple will does not offer the same level of estate planning as other types of wills.
Joint Will
A joint will is a type of will that is made by two or more people. The purpose of a joint will is to ensure that all property and assets are distributed equally between the co-owners. A joint will can be used to designate beneficiaries, name an executor, and designate a guardian for minor children.
A joint will is typically less complicated than other types of wills and is therefore easier to execute. It is also less expensive to draft and update. However, a joint will does not offer the same level of estate planning as other types of wills.
In order for a joint will to be valid, all co-owners must sign the document. Additionally, each co-owner must have testamentary capacity (the legal ability to make a will). If one co-owner dies or is unable to sign the will, the will is no longer valid.
Deathbed Will
A will that is made by a person who is dying is not desirable and is mostly not valid. Deathbed wills are always clouded by notions and imports of mental incapacity, duress and fraud. The person must be mentally competent when they sign the will and the will must be proper and devoid of the above grounds which may otherwise render it invalid.
Online Will
One of the most common reasons for a will to be invalid is because it was created online. While there are many reputable online will services, there are also many scammers. If you choose to create your will online, be sure to do your research and only use a service that is reputable and has a good track record.
Nuncupative Will (Oral Will)
A nuncupative will is a type of will that is spoken rather than written. This type of will is not as common as a written will, and it is typically only used in emergency situations. A nuncupative will must meet certain requirements in order to be valid. For example, the testator must be incapacitated and must have witnesses to the will.
If a nuncupative will meets all of the requirements, it can be a valid way to distribute property after death. However, there are some risks associated with this type of will.
- First, the executor may not be able to carry out the terms of the will if the testator dies intestate (without a will).
- Second, there is a greater chance that the will will be challenged in court.
- Finally, a nuncupative will is typically not as detailed as a written will, so it may be more difficult to carry out the terms of the will.
Holographic Will
A holographic will is a type of handwritten will. This type of will is valid in most states, but there are some requirements that must be met. For example, the testator must sign and date the will. The handwriting must also be legible.
If all of these requirements are met, a holographic will can be a valid way to distribute property after death. However, there are some risks associated with this type of will.
- First, it can be more difficult to prove that the will is valid if there is a dispute.
- Second, it is more likely that the will will be challenged in court.
- Finally, a holographic will may not be as detailed as a written will, so it may be more difficult to carry out the terms of the will.
Conclusion
A will is a legal document that dictates how a person’s property should be distributed after they die. It is an important document for anyone with assets to protect.
There are several things that can make a will invalid. The most common reasons are listed above. If you are considering creating a will, it is important to understand these reasons and take them into account. Otherwise, your will may not be valid and your property could be distributed differently than you intended.