One of the very first legal obligations you’ll have after the death of a loved one is to find out whether or not they have left a Will behind. This is very important question to answer, as any Will they’ve left will determine how their estate should be administered. If they haven’t left a Will, the estate will need to be wound up in adherence with the intestacy laws.
Unfortunately, finding a Will does not necessarily mean that the Will is valid. There are a number of factors that could render a Will invalid, and part of your task will be to consider this.
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In these situations, you will need to ask the following questions:
Has the Will been properly signed and witnessed?
A Will is only valid if it has been properly signed in the presence of witnesses. Who the witnesses were is also important. If someone who is named as a beneficiary in the Will has acted as a witness, they will no longer be able to inherit from the estate.
Was the Will made by a qualified solicitor?
A Will does not necessarily need to have been made by a solicitor in order to be valid, but you will need to take extra care over homemade wills. We’d usually recommend seeking advice from a specialist probate solicitor about whether a homemade Will can be considered valid before you start using it to administer an estate.
Did the person who has died make a new Will more recently than the one you have found?
The date of the Will you have found will be important, as any Will that was made subsequently will invalidate any previous wills. If you’re unsure about whether a later Will might exist, we’d recommend speaking to local solicitors that your loved one may have worked with. They will also be able to advise you about doing a National Will Register search if appropriate.
Was the Will made before a change in marital status?
When a person gets married or enters a civil partnership, any previous Will they have made will automatically be revoked (unless the Will was made specifically in preparation of that event). If the Will you have found is dated before the person who has died married or entered into a civil partnership, it will no longer be valid.
There may also be issues with a Will if it was made before a divorce or dissolution of a civil partnership. In these situations, though the whole Will should not be considered invalid, the person’s former spouse or civil partner will no longer be able to act as an executor or inherit from the Will.
Has the Will been damaged in any way?
If a paper copy of the Will found in the person’s home has been damaged in any way, this could suggest that the person had tried to destroy the Will in order to revoke it. Any rips, crossings out or other damage could therefore mean that a Will is invalid, even if there are other copies that have not been damaged.
Is there anything missing from the Will?
A Will could also be considered to be invalid if there are any pages or codicils missing from it. Something as simple as a mark from a stapler or a paperclip could raise questions about whether the person who has died intended for something else to be included with the Will.
Was the person who made the Will of sound mind at the time it was made?
A Will is only valid if the person who made it was in their right mind at the time it was made. This can be a concern if the Will was made later in life, especially if the person had a diagnosis of dementia or Alzheimer’s disease. In these cases, it may be necessary to gather evidence from the solicitor who drew up the Will and any medical professionals who worked with the person who has died around the time the document was made.
Was the person who made the Will under undue pressure to make the Will?
A Will might also be considered invalid if you believe that the person who made it was under undue pressure from another individual to make the Will. If you believe that a Will does not accurately represent what the person who has died would’ve wanted because another individual has put pressure on them, this will likely need to be investigated. These can be very complicated situations, and we’d advise seeking expert legal advice.
Was the Will definitely made by the person who has died?
Completely fraudulent wills are rare. However, if you have any doubt about a Will and whether or not it was really made by the person who has died, we’d recommend discussing your concerns with a specialist probate solicitor.
What should you do if you have concerns?
This is a complex area of the law, and you may wish to find out more about it before you consider your next steps. Our complimentary Challenging a Will ebook goes into a lot more detail about situations where a Will might be considered to be invalid. Once again, if you have any concerns about the validity of a Will, it’s important to seek expert advice as soon as possible.
How Roche Legal can help
We are reassuring experts who can help you with a wide range of legal matters. Please get in touch if you need legal support with:
- Trusts and Estate Planning
- Wills
- Probate and Estate Administration
- Contested Probate and Will Disputes
- Powers of Attorney
- Court of Protection matters
- Presumption of Death Applications
- Missing Persons Guardianship Applications
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