Will is not valid

A Will needs to comply with the rules for making a Will so that when the person making it dies it has legal force and is followed.

The rules for making an effective Will can be summarised as the person making the Will:

• Knowing what money, possessions and property they own.
• Understanding the effect of their Will (what will happen when they die such as the consequences of including and excluding people).
• Approving of the content of their Will
• Knowing that they are signing their Will, with its legal consequences.
• Following the correct procedure for signing their Will and having their signature witnessed.

For the person making their Will to understand their Will they must have sufficient “mental capacity” at the time that they sign their Will to be able to comply with these rules.

If it can be shown that the rules were not followed, then their Will can be declared “invalid” meaning that the law will not allow it to be followed.

A Will can therefore be challenged and held to be invalid for a number of reasons such as:

• It has not been properly signed or witnessed. This could be because the solicitor or will-writer who helped prepare the Will failed to give proper instructions as to how the Will should be signed and witnessed. Or if the Will as made without professional help it might just be the fault of the person making the Will.
• At the time the person made their Will they were ill or injured and did not have the necessary mental capacity. This might be because they were suffering from a head injury or an illness such as dementia or Alzheimer's disease. In such circumstances, medical evidence of what they could understand at the time is crucial.
• It was not the last Will and there is a more recent lost or destroyed Will that should be reconstructed.
• The Will was part of a fraud. This might happen where the person making the Will was misled into leaving someone out of their Will. Alternatively, someone could have written the Will for them leaving a large gift to themselves without the person who died ever knowing.

Where a Will is declared invalid it can have serious legal consequences. As it cannot be followed it means that either:

• The person’s previous Will (that was valid when it was made) will apply, even if that previous Will was made a long time ago,

or

• Where there was no previous Will, then the law will follow the rules that apply where someone dies without a Will (even though these may not be that relevant to the person’s circumstances).

If you are concerned about the validity of a Will you should seek legal advice on the particular details of your circumstances.

This might be to defend the Will (where you benefit from it being held to be valid). This might be to challenge its validity  

(for example because you were left more under the previous Will).

Claim for your lost or reduced inheritance

If the Will is declared invalid and this means that you are now left out or will receive less (as the previous Will or Intestacy Rules will be followed) then you may be able to bring a claim for your loss.

Where the person who died used a professional advisor to help them prepare their Will and it was their error that caused the Will to be invalid, or they failed to look after the best interests of their client, then we’ll be able advise if you have a claim against them for your loss.

Your claim will be for your lost inheritance due to their negligent advice. This is known as a professional negligence claim. Click to read more about professional negligence claims. [link to professional negligence hub]

Evidence will be essential to the success of proving your case. This can include:

• Witness statements (for example from those who may have been present when the person who died was advised on preparing a Will or when it was signed and witnessed)
• Independent records, such as the file of the company that prepared the Will, especially if there are notes about what the person intended or their mental health at the time of signing
• Expert evidence (perhaps into the mental health of the person at the time)

Our Free Initial Assessment service is available to help you find out from our expert lawyers if we can help you – whether you are able to make a claim to dispute a Will or if you need advice on defending a challenge to a Will made by someone else.

If it looks like we can help our £99 Ask the Legal Expert service can look at your particular circumstances on more detail. We can help you identify what evidence can be obtained and also whether it is necessary to also obtain any expert reports.

As part of our service we’ll also check if the Will to see if it has a “forfeiture clause”. Where there is such a clause it means that if someone challenges the Will but is unsuccessful they will lose their inheritance under the Will. We’ll advise on the implications to your particular situation.