What makes a will invalid?

Rachel Shaw, a specialist solicitor in contesting wills takes a look at what makes a will invalid.

In order for a will to be procedurally valid, there are several formalities which must be complied with as set out in the Wills Act 1837 (as amended by the Administration of Justice Act 1982). These are:

1. The will must be in writing;
2. The will must be signed by the person making the will or by some other person in their presence and by their direction;
3. It must be clear that the person making the will intended by their signature to give effect to the will;
4. The signature must be made or acknowledged in the presence of the two witnesses present at the same time;
5. Each witness must attest and sign the will or acknowledge the signature of the person who is making the will in their presence.

During the COVID-19 pandemic, it became evident that for those people physically vulnerable to the virus, that it was extremely difficult to execute a will with regard to the usual formalities, namely the witnessing of a will by two people. Therefore legislation was introduced after 31 January 2020 whereby video conferencing could be utilised as long as the both witnesses were present at the same time remotely with a clear line of sight of the person making the will writing their signature. Such legislation still remains in force until 31 January 2024, although this date may be shortened or extended if necessary. Electronic signatures and counterpart documents remain non-compliant with legislation governing the making of wills.

We have dealt with several cases whereby wills executed during national lockdowns have not been compliant with the necessary witnessing formalities. The has resulted in very different distributions of estate than what had been set out in what the person making the will thought were their final wishes. As such these rules are very important, but should also be examined by those wishing to challenge the validity of a will made over the last two to three years.

Can anything else make a will invalid?

A validity of a will can also be challenged when:

1. At the date of the will, the person making the will did not have the necessary capacity to do so;
2. At the time when the will was made and the person making the will signed it, they did not have the intention to make a will and for it to be put into effect upon their death;
3. At the time when the will was made, the mind of the person making the will was affected by undue influence, lack of knowledge and approval which impaired their intentions;
4. The intention of the person making the will is not clear and incapable of being ascertained from the will’s wording;
5. The beneficiary detailed in the will cannot be identified or is not capable in law of receiving the gift;
6. The subject matter of the gift cannot be identified; or
7. The will is revoked.

Challenging the validity of a will is not straightforward and requires expert advice.