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How to Ensure Will Validity: What Makes a Will Valid?


Simon Colwill - November 23, 2023 - 0 comments

Writing a legally valid Will and ensuring you follow the correct procedures is one of the most important steps you and your family members can take to ensure that your wishes are honoured, your loved ones are protected, and your assets are distributed as you intend. 

MSC Notaries discuss critical questions and requirements around Will validity, to ensure you are fully informed on what makes a Will valid and invalid. Drawing from our expertise in Wills and Probate, we aim to provide you with the key information for you to make informed decisions on your estate and how it is distributed. 

What makes a Will valid?

There are several key components that are required for a Will to be valid.

Age

The person writing their Will, officially known as the testator, must be aged 18 years or older. There may be extenuating circumstances for certain people under 18 to write a Will, such as those in the armed forces or seamen.

Witnesses

The Will must be signed by the testator in the presence of two witnesses, who are also over the age of 18 and the two witnesses must also sign in your presence. If the testator is physically incapable of signing their Will, they can direct someone to sign on their behalf, but they must be present. 

It’s important to note that your witnesses or their married partners cannot be left anything in your Will, so they will generally need to be people outside your family or close friends. 

It’s also advised to ensure the same pen colour, and ideally, the same pen is used to avoid discrepancies or concerns about the signatures not being witnessed.

Mental testamentary capacity

The testator for the Will must have the ‘testamentary capacity’ to do so, whereby they are aware of the purpose of the document, the assets involved and the people who will inherit. 

Previously, it was stated that testators must be of ‘sound mind’ to ensure Will validity, however, this terminology was updated with the Mental Capacity Act 2005. 

To have ‘capacity’ it is required that:

  • An individual must be able to understand what they are writing and the effects, as well as the effects of not creating a Will.
  • An individual must understand their assets and what they are able to distribute to others in their Will.
  • An individual must understand the family members who will be expected to inherit their estate and assets. 
  • An individual must not be under the influence or experiencing anything that could impede their judgement at the time of creating the Will, for example, temporary or permanent mental illnesses, physical injuries or illnesses.

If a person’s capacity to write their Will is unclear, there are various factors to consider:

  • You should assume an individual to have capacity unless this is otherwise proven, even if you deem their decisions to be unreasonable or inadvisable. 
  • You should assess an individual’s capacity based on the task and decisions at hand, not on all general decisions they may have made in the past.
  • An individual may be able to make decisions in certain circumstances such as times of the day, locations, contexts, and in the presence of certain people. You should therefore allow them to be put in these situations to allow them to make decisions regarding their Will. 

If a person’s capacity is in doubt and cannot be determined, it is best to consult with a doctor and obtain a professional opinion and report from them prior to any decisions being made. 

Other requirements

  • The Will must be made by the testator voluntarily, with no pressure from others.
  • The Will must be in writing, with some exceptions for those in the armed forces or seamen.

What makes a Will invalid?

There are various instances where a previously valid Will, can become invalid or require an amendment. 

Marriage and Divorce

If a testator marries after their Will has been written, this will be revoked, unless they state in their Will that they planned to marry that certain person, and they are named. Therefore, a Will must be officially amended to include any new spouses and re-signed in the presence of witnesses to be valid. 

In the same vein, if a spouse is named to inherit assets in a Will, but the testator has since divorced them, these gifts are no longer valid. 

Codicils or revokes

Any changes, known as codicils, to a Will must be in a written document and re-signed by the testator and two witnesses using the exact same formality process. If these formalities are not followed, the Will becomes invalid. The witnesses used for any codicils do not have to be the same as those used for the original Will. 

If an individual has any larger changes to make and therefore decides to redo their Will entirely, they must state in their new Will that it intends to revoke the previous and the previous must be destroyed. The UK government advises that to destroy a Will, the original and any copies should be burned or shredded either by the testator or in their presence.

Invalid execution

As mentioned, there are certain procedures that must be followed to ensure Will validity, including:

  • The Will must be in writing
  • The Will must be signed by the testator and two witnesses at the same time
  • The testator must have the capacity to write and make decisions for the Will 

If these are not strictly adhered to, the Will risks being invalid.

Will fraud

Will fraud is when someone forges a Will, acting as the testator and making decisions on the testator’s behalf. Other instances of Will fraud include a Will being destroyed by someone, so a previous Will is used instead. Will fraud and forgery is a serious crime, however, it is an instance that can be difficult to prove and find evidence for.

Undue influence or coercion

It’s important for Will validity that an individual has not been put under any undue or inappropriate influence or coercion to write their Will, or to make certain decisions in their Will. The testator must be acting entirely on their own volition and free will in all the decisions made. 

However, due to the nature of this, proving undue influence has occurred can be difficult to prove and provide evidence for when contesting a Will’s validity. 

Some signs or examples that could suggest undue influence has taken place may include:

  • Last-minute changes to a Will
  • Changes to a Will that seem out of character, unexpected or unpredictable
  • Changes made to a Will or a Will being written while the testator is vulnerable or relying on someone for care or support

Ensure a Will is legally valid in the UK

Writing a legally valid Will is a crucial step in making sure that you and your family’s wishes are upheld. MSC Notaries is a family-run business and experienced Wills and Probate solicitors able to assist you in all aspects of Will drafting, fulfilment and validation process. 

Every individual and family’s situation is unique. We can answer any queries you may have, and provide you with personal solutions to your or a family member’s circumstances. Let us help to safeguard your assets with a legally valid Will. 

Speak to our team today for more information on our services and pricing, and schedule an appointment with one of our friendly solicitors.

FAQs

Is a handwritten Will legal?

Yes, a handwritten Will, otherwise referred to as a holographic Will, is legally recognised in the UK, however, to ensure validity the entire Will must be handwritten and hand-signed by the testator and two witnesses. While handwritten Wills are legal, it is advisable to follow traditional formalities and consult with legal professionals to ensure the Will is less likely to be contested or open to disputes.

Is a will made 40 years ago still valid?

Yes, a Will made 40 years ago can still be valid providing it meets the legal requirements in place at the time of its creation, as there is no time limit on Will validity in the UK. 

The time period of a Will does not affect its validity, providing it follows the requirements of the law mentioned in this article. While a Will made 40 years ago can still be valid, it’s advisable to have the document reviewed by a legal professional periodically to confirm this. You should also ensure the Will is up-to-date and reflective of the person’s current circumstances and wishes. 

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