The risk of a Contested Will

Getting it right when it comes to making your Will is paramount. However, mistakes are all too often made when a Will is drafted.

Any which way you look at it, Wills are risky and can be a very stressful subject. The consequences for getting it wrong can also be severe. This article highlights the main reasons why many Wills become contested and also offers solutions to mitigate the risks mentioned.

What makes a valid Will?

In order to discuss what invalidates a Will, it is important to first understand what makes a valid Will.

For a Will to be valid it must:

1. Be in writing;
2. Signed by the person making the Will (the testator);
3. Witnessed by two people;
4. Be made by the testator whilst the testator has the relevant capacity to make a Will.

It is important to expand on point four above and the best way to do so is to set out the test for testamentary capacity as highlighted by the caselaw of Banks v Goodfellow [1870] which states the testator:

1. Must appreciate the nature and consequences of making a Will;
2. Must understand the extent of his or her property;
3. Should consider any moral claims to their estate; and
4. Must not be impacted by any disorder of mind or insane delusion.

Now it is important to look and what invalidates a Will.

What invalidates a Will?

There are many reasons as to why a Will may be proven to be invalid, and the most common reasons are as follows.

Proper execution

It is not unusual for the testator or their witnesses to get it wrong when completing the signing and witnessing of a Will. This is easily managed by seeking the advice of a specialist solicitor. However, if not done properly, this could cause the Will to be proven to be invalid. It is vital therefore that when you execute a Will, you do so correctly by ensuring the Will is dated for the day of signing, that two witnesses sign the Will in the presence of the person making the Will with the addition of printing their full name, address and occupation and finally that the person making the Will signs the Will in the presence of their two witnesses.

Clerical errors

It is important to be aware of how grammar and language could invalidate a Will. Poor drafting can make the testator’s wishes unclear or legally unworkable and therefore void. This is a key reason as to why it is important to approach will writing companies and what are known as “home wills” with caution. If in doubt, it is sensible to instruct a specialist solicitor to assist.

Undue influence

Coercion or pressure on an individual making a Will is more common than it should be. The existence of this sort of influence may invalidate a Will as it brings into question the decisions made by the person making a Will. The courts fully appreciate that sometimes a vulnerable individual may be pushed to make a certain type of Will and this is something which can be discussed with our private client team at Pinney Talfourd.

Mental capacity

Another reason why a Will may prove to be invalid is that the testator may not have possessed the relevant mental capacity to have made a Will. It is therefore vital that if there are concerns regarding an individual’s capacity to make a Will that steps are taken to prevent this becoming a reason for the Will to be proven to be invalid after death. One way (amongst many) to do this is to instruct a medical professional to carry out a capacity assessment before a testator makes a Will so that the capacity report may be produced if and when needed.

In closing

Ultimately, whether you are making a Will to direct your estate to one or ten beneficiaries or if you are leaving a multi-million pound estate or a small patch of land, it is vital that the relevant legal advice is sought to ensure that the Will you are making is valid and reflects your wishes accurately.

How Pinney Talfourd can help

If you do not have a Will in place or wish to speak to someone regarding an existing Will, then please don’t hesitate to contact our Private Client so that we may assist you further.