What happens if someone dies and their Will is invalid?
The rules surrounding making and signing a Will are strict, and when mistakes are made, a Will could be invalid. We look at what happens if someone has died and their Will cannot be used.
Having a Will professionally drafted is the best way to avoid any issues arising in the future. If a Will is found to be invalid or those left behind have concerns over validity, there is a risk that a family dispute could occur. As well as damaging family relationships, this could drain the estate of funds if a legal claim is made and severely delay the distribution of the funds.
When is a Will invalid?
To be legally valid, a Will must be:
- In writing
- Signed by the person making the Will, known as the testator, or by someone at the testator’s direction
- Witnessed by two witnesses who should sign and add their name and occupation
A Will can be invalid in the following circumstances:
- Fraud or forgery is involved
- The deceased did not have the mental capacity to make a Will
- The deceased did not have full knowledge or approval of the contents of the Will
- The Will was not correctly signed or executed
- The testator was unduly influenced into making the Will in the terms that they did
What happens if a Will is invalid?
If the court declares that a Will is invalid, then if a previous valid Will exists, that Will takes effect instead.
Where there is no previous valid Will, the estate will be intestate. In that case, the rules of intestacy will apply, setting out who is entitled to inherit.
If the deceased left a spouse and children, then the spouse will inherit all of the deceased’s personal possessions plus the first £322,000 of the net estate. The remainder of the estate is split into two. The spouse inherits one half, and the children share the other half equally. This often means that a spouse will inherit substantially more than children.
When the deceased has remarried, this can cause problems, as there is a risk that the new spouse could then leave the money to their own children in due course, meaning that the deceased’s children could miss out on receiving the majority of their inheritance.
Co-habiting partners and stepchildren do not inherit anything under the rules of intestacy. If they believe they need financial support, they will need to make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975.
It can be expensive for an estate to deal with legal claims, particularly if there is a lengthy dispute. For this reason, it is important to ensure your Will is valid and that it is reviewed every five years, or in the event of any major life changes, such as divorce, marriage or the birth of a child or grandchild.
How to avoid an invalid Will
An experienced Wills solicitor will be able to ensure that your Will is correctly drafted, signed and executed, as well as providing advice on issues such as Inheritance Tax, sideways disinheritance, supporting a blended family and leaving someone out of your Will.
Where there could be questions over mental capacity, the solicitor will ensure that appropriate safeguards are in place.
You must have a new Will made if you marry, as marriage automatically invalidates a Will unless it is made in contemplation of the marriage.
Contact Us:
If you would like to speak to one of our expert estate planners, ring us on 01634 353 658 or email us at rob@pembrokewillwriters.com