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Can a mistake invalidate a Will?
We all make mistakes, don’t we? They are part of human nature.
Thankfully, where Wills are concerned, the chances of invalidation due to a simple mistake are fairly minimal. However, when things do go wrong it is often with major consequences, which is why it’s important to engage professional legal support to draft the documentation, rather than attempting to navigate a do-it-yourself kit.
Here, we examine some of the potential ways in which a Will can or can’t be invalidated, what classes as a mistake, and what is likely to happen if your Will is found to have inaccuracies after your death.
What can invalidate your Will?
Several things can invalidate a Will. Some involve minor and easily rectifiable mistakes, whereas other instances are highly contentious issues, and may result in drawn-out legal battles.
In England and Wales, you are legally allowed to make a Will if you are over the age of 18 and have what is known as ‘testamentary capacity’. Very simply, this means that, at the time you are making the Will, you fully understand the implications of what you are undertaking. This means knowing, who are the main beneficiaries, and what the possible consequences will be for either including or excluding certain people. You should demonstrate an understanding of the size of your estate and knowledge of what your assets are and be able to prove that your wishes are those of your own beliefs, not borne from any kind of coercion. The test for testamentary capacity is based on old case law. If a person making a Will does not have testamentary capacity, then they cannot make a Will. Questions over testamentary capacity can lead to lengthy disputes and so if there is any doubt, legal advice should be sought.
A common argument is that the deceased no longer had the testamentary capacity at the time of drafting due to old age, or a condition such as Alzheimer’s or dementia. It might be that certain medications were affecting the testator’s mental capacity or allegations that mental health had been in decline. Any one of these could call into doubt testamentary capacity, however difficult it may be to actually prove after someone has already died.
If health and wellbeing are a concern, and you are worried that your testamentary capacity could be called into question after your death, you may wish to request a medical professional to be a witness to your Will.
No medical practitioner will sign a Will document if they doubt that the testator has testamentary capacity, so this one act should itself help to secure the validity of your Will in the event of your death.
Wills must be entered into voluntarily and any third-party attempts to coerce (emotionally, verbally, or physically) or manipulate the contents of your Will could lead to a claim against the Will’s validity. As such, if you are concerned about any attempts to unduly influence your decision-making when drafting or amending your Will, you should seek legal advice.
Even if this is not the case, your testamentary capacity could still be called into question after your death by people who might be surprised or disgruntled by your choices, or who genuinely feel that are entitled to a more generous inheritance. In these instances, they may seek to establish that you lacked the wherewithal to fully comprehend the implications of your actions when you were making the Will.
Signing the Will
If a Will is not signed by the testator, then it will not be valid.
A Will should always be signed in the presence of two independent, impartial witnesses, who in turn also sign the Will to confirm they witnessed the testator’s signature.
There are rules regarding witnesses that must be adhered to for the document to be legally binding, you should seek legal advice before a Will is signed to make sure that the proper formalities are followed.
Wherever possible, a witness should be over the age of 18. Although it is not illegal for them to be under this age, any younger, and there could be allegations of coercion or the belief that they did not fully comprehend what they were undertaking;
Witnesses must be of sound mind, aware of their undertaking, and not be blind;
Witnesses must be truly independent. They cannot be a beneficiary of your Will, nor, for that matter, be related to any of your beneficiaries either by blood or marriage. If it is discovered that a witnesses would benefit under the terms of the Will, that specific bequest would fail. The rest of the Will may still be valid but it does create an element of doubt from which problems or contests may arise;
Witnesses must be present when the testator signs the Will;
The testator must then be present when the witnesses sign the Will;
There must be two witnesses, one is not enough. There have been cases where a Will, despite being in good order in all other aspects, has been declared null and void because there was only one witness.
The onset of the coronavirus pandemic made the practice of signing and witnessing a Will problematic, with lockdown and social distancing measures prohibiting persons from different households mixing or gathering. To rectify this, in one of the biggest changes made to the Will writing process in nearly 200 years, new legislation made it possible to witness the signing of a Will via video conferencing.
Although the legislation applies to Wills made until 31 January 2024, current advice cautions against it, stressing that video-witnessing should only be a last resort. This is because it is a relatively complex process and there will also be a greater risk of uncertainty that the signatures will have been executed properly and therefore, an increased possibility that its validity could be challenged.
Now that COVID-19 restrictions have been lifted, in person witnessing has resumed, The key rule for witnessing a Will in all circumstances is that there must be a clear line of sight when pen is put to paper by the testator and the witnesses.
Other common errors
On occasion, a Will may be revoked (that is, cancelled), even if that was not the testator’s intention:
- If you get married or remarried, or enter into a civil partnership, unless there is an existing, valid Will that includes a clause anticipating your intention to marry;
- If an original Will is destroyed by accident and a new one isn’t signed;
- If the testator is found to have lied about their date of birth, and they are under 18;
- If there is any evidence of fraud, coercion, or forgery.
What happens if a Will is invalid?
If a Will is revoked either intentionally, or through any of the above reasons and a previous valid Will does not exist, the law will determine the distribution of the estate under the rules of intestacy. This may or may not reflect what your wishes are.
Intestacy laws operate as if the Will never existed. How the estate is divided is dependent on several factors, such as whether you are married, or how many children or dependants you have. In England and Wales, the law will prioritise beneficiaries, starting with immediate family, then moving down the line through parents, siblings, cousins, aunts or uncles, etc. If there are no surviving relatives, however, the entire estate will pass to the Crown (the laws of intestacy vary in both Scotland and Northern Ireland).
This is problematic if you have loved ones who aren’t directly related, such as a partner with whom you own a home or other assets but to whom you aren’t married. Regardless of the length of the relationship, they would not be considered within the rules of intestacy and will not automatically receive any benefit from your estate. Likewise, any step-children, charities or friends wouldn’t have a legal entitlement to any of your assets.
When is a mistake not a mistake?
Mistakes involving Wills can be incredibly costly and stressful for those left behind when they come to light. However, they are not always catastrophic.
For example, a person’s perception of what quantifies as a ‘mistake’ will often differ from other individuals. Proving something was a mistake that could invalidate a Will, when in fact it was a deliberate act undertaken by a testator, can be extremely challenging in the Court of law.
In the case of Ball v Ball (2017), the High Court ruled that a mistake was, on its own, was not enough to invalidate a Will.
The case centred on a challenge by three estranged children of Barbara Ball to her Will on the grounds of testamentary capacity and undue influence. As her husband had pre-deceased her, Mrs Ball’s Will made provision for the estate to be left to her remaining eight children and grandson, so excluding the three estranged children.
In 1991, a year before Mrs Ball signed her Will, the three children became estranged from the family after making allegations of sexual abuse against their father; to some allegations he had pleaded guilty. Evidence presented at the trial suggested that, at the time the Will was prepared, Mrs Ball had accepted that, although there was some truth to the abuse claims, they were exaggerated.
The estranged children’s contention was that Mrs Ball’s Will was the direct result of a serious misapprehension or mistake – in this case, that her husband was innocent. On this ground, they claimed Mrs Ball lacked capacity to make her Will. If this was not the case, they claimed that their mother had been subject to undue influence by their father in making the Will.
The challenge to the Will was dismissed on both grounds as mistake, on its own, was not enough. The Court found that there had been no mistake on the facts of the case and there was no evidence of coercion by Mr Ball against his wife. Even if Mrs Ball had been mistaken as to his innocence, the Court decided on the evidence, that the mistake was not enough to show she lacked the capacity to make her Will.
A claim was also made by the three estranged children for reasonable financial provision from the estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975. In this instance, the Court considered the Supreme Court Court’s judgment in Ilott v The Blue Cross  and held that, although they were eligible to make a claim under this Act, it did not justify an award, as Mrs Ball had not created a moral obligation towards them, no other special circumstances existed, and their claim was no better that of the Defendants.
Cases such as this may cost thousands of pounds to resolve and have a profound impact on all those involved.
As there are so many issues when drafting a Will, ensuring that you enlist the support of a legal Will-writing professional can eliminate the potential of avoidable mistakes being made that could invalidate a Will.
Here at Buckles, we have the expertise to guide you through the process, ensuring that your Will stands up against scrutiny. Equally, if you believe that a mistake in a Will has cost you as a potential beneficiary, we are here to help. Please don’t hesitate to get in touch.