It’s hard to think of your family dealing with life without you in it, but it is even harder to think of your family struggling – whether financially, or with one another – when you are no longer there to make things right.
Our wills are our final chance to ensure that our loved ones can cope in the days, weeks, and years after we die. They are a powerful tool for giving us much-needed peace of mind, and avoiding making our family’s grief any harder to bear.
But, despite their importance, there are still many misunderstandings out there about what wills can do, and what makes them invalid. This is why so many families each year are forced to contest a will and, potentially, deal with long-term disputes as a result. You can click here to read more about the process of contesting a will, and what it would entail.
So, could your will be contested? Here are some things to think about.
Any will could be contested, so long as someone close to you has a valid reason
Wills aren’t just contested because someone isn’t happy with what they’ve been left, or believes you’ve backtracked on a verbal agreement you made to them (although this may be a different type of claim).
Here are the reasons why your will could be contested…
- The will does not comply with legal requirements
There are certain legal requirements which must be complied with for a will to be valid – a letter of wishes, for example, is not legally binding.
Problems often arise when a loved one has prepared a will without legal advice or where they have taken instructions to sign the will without having it checked by a lawyer.
- Lack of testamentary capacity
This refers to instances when the will was written at a time when the testator was not in a condition to make such big decisions about their estate. It may be that they suffered from a degenerative condition that impacts their mental state, such as Alzheimer’s disease, and left writing their will too late, or that they suffered a significant brain injury. Short term issues like certain medication and minor infections, for example, can also affect a person’s ability to understand the consequences of making a will.
If it can be proven that the testator lacked the testamentary capacity, then the will may be considered invalid by the courts.
- Lack of approval or knowledge
There can be instances where the testator is not fully aware of the contents of the will. If they are visually impaired, for instance, then someone may add an additional request that they are not aware of. This can also happen if the testator has a low level of literacy, and is unable to review the will themselves.
- Undue influence
If it can be proven that the testator was pressured or forced to write their will a certain way or make certain requests within it, then it will be considered invalid, and the estate will be divided according to an earlier and valid will or the rules of intestacy.
- Forgery or fraud
While it may sound unlikely, it has been known to happen. A will may be a complete fake, and created without the knowledge of the (supposed) testator. Alternatively, the real will may have been tampered with.
- Rectification
This simply refers to an error made as the will was written. These errors are often made during the signing and witnessing of the will, primarily when the will was a ‘DIY’ or at-home will, rather than one drafted in the presence of a solicitor.
- It is in breach of the Inheritance (Provision for Family and Dependants) Act 1975
If the will is valid but the testator had financial dependents – whether they were blood relatives, married partners, or totally unrelated to the testator – then failure to include them within the will could mean they have grounds to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
How Can You Avoid Writing a Bad Will?
The best way to avoid writing a will that could one day be contested is to work with a solicitor. They will be able to guide you through what can be a complicated and difficult process, and make sure that your requests are made clear, that every element of your estate is sorted through – from your properties to your digital assets – and avoid any clerical errors that could invalidate it after your death.