What Happens If a Will Hasn’t Been Drawn Up Properly?

INTRODUCTION 

Wills and estate planning can be complicated and hard to figure out at the best of times. However, given that a Will carries legal consequences and affects people you care about, it's essential to ensure it's written correctly and legally under the law. If a Will seems questionable or invalid, it can help to know the possible problems and legal hurdles so you're clear about the range of options open to you.

This article examines the essential parts of a Will's legality under English law and answers some common questions we receive about how to tell if a Will was written correctly or not, what could happen if a Will isn't legal, and some situations that could lead to wrong assumptions about a Will's validity.

Remember that while this article is an excellent place to start, we invite you to consider other related articles in our library. If you still need help, you can always contact us with any further questions. Simply scroll to the bottom of the article for our contact details.

CONDITIONS

1. The Will must be in writing.

2. There must be a proper (witnessed) signature.

The person making the Will (the Testator) must sign the Will in front of two witnesses, who must also sign the Will in front of the Testator. If the signatures are missing or there is proof that they were added later or under pressure, the Will may not be valid.

3. The Will must be made voluntarily, without any pressure from anybody else.

4. Somebody of sound mind must write the Will.

When they sign the Will, the Testator must be of sound mind. If there is proof that they didn't know what they were doing, the Will could be thrown out. For example, this can happen if the person writing the Will has dementia, was high on drugs or alcohol, or was being influenced too much by someone else.

5. There cannot be ambiguities or mistakes in the Will.

Lack of clarity or mistakes in a Will can potentially lead to disagreements about the Testator's intent when writing the Will. Wills can be thrown out if they contain errors that can't be explained.

Similarly, if a Will writer has poorly drafted the Will or the document contains clauses that are impossible to understand, are not legal or impossible to execute, this could lead to the Will being considered invalid.

6. Information in the Will must be up to date.

If the Will doesn't reflect significant recent life changes that have happened recently, like getting married, divorced, or having children, the document may need to be written correctly.

At the beginning of the Will, it should state that it revokes all other previous Wills. You should destroy any earlier copy of the Will.

A WILL CAN SOMETIMES BE VALID, EVEN WHEN YOU THINK IT'S NOT

Several circumstances could lead you to question the validity of a Will, whereas the document could still be legally valid. Let's look at some of the more common cases before delving into the more prominent areas of non-validity.

1. The distribution of assets seems unfair or not what you expected

A Will may determine the distribution of assets in a way that seems unjust, strange, or not what you expected. However, unless it can be shown that the Testator didn't have the mental capacity or was coerced, a testator has the right to leave their assets to whoever they want.

2. You have a handwritten or DIY Will

Either of these cases can make you think the Will isn't "real". However, a handwritten Will can be legally valid if correctly signed and witnessed, regardless of whoever drafted it.

3. The Will doesn't look 'legal'

Sometimes, a Will might look too simple and not include legal jargon. However, no rule says a Will needs to use legal language to be deemed valid. It must only state the Testator's wishes and be signed and witnessed correctly.

4. The Testator is old or ill

If the person making the Will is very old or sick when they sign it, you might wonder if they had the mental power to do so. But just because someone is old or ill doesn't mean the Will isn't legal. The Testator only needs to know what the Will is, how it works, how the assets are being distributed and what claims they should give effect to.

5. The Will contains strange or unusual requests

Some people make strange or unusual requests or conditions in their Wills, which may give the impression the Will isn't bona fide. But as long as these requests are both possible and legally valid, the request doesn't invalidate a Will.

6. A marriage took place after the Will was made

Under English law, marriage revokes a "pre-marriage Will". On the other hand, if a Will was made with marriage in mind and the marriage is written into the Will, the document won't be invalidated once the marriage occurs.

IMPLICATIONS OF AN INVALID WILL

If a will is found invalid, the Estate of the person who died is generally distributed according to the rules of intestacy, as if the deceased individual had not left a Will.

Potentially, this can significantly impact the Estate's beneficiaries, especially if the Testator's intended distribution differs considerably from these default rules.

Under the rules of intestacy, only married or civil partners and some close relatives can inherit. The Estate can pass to the Crown if the deceased had no living close relatives and didn't leave a valid Will.

The rules of intestacy also dictate how much of the Estate each recipient is entitled to, even though this might not have been the wishes of the Testator.

In addition, if beneficiaries were expecting a specific outcome that was in line with the Testator's wishes, but the Estate is then distributed otherwise due to an invalid Will, this can lead to all sorts of disagreements and friction among the beneficiaries. In this case, there's not just the emotional stress to consider but also the potential legal ramifications if a beneficiary decides to launch a legal dispute.

For all these reasons, it's therefore vital to ensure the Will is written correctly so that your wishes are appropriately carried out. Should you find yourself in a situation where a Will has been declared invalid, it's vital to understand your legal position as soon as possible and take swift action before it's too late. As stated in other articles, the longer you leave things, the more complex, time-consuming and costly it can become to put things right.

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