5 surprising ways your will could become invalid

If you haven’t already made a will, then hopefully it’s at the top of your new year to-do list. Having a will in place means you can name your chosen beneficiaries and make sure children and other dependants are looked after.

Carefully planning how your estate will be distributed when you die can also help avoid landing your loved ones with a large Inheritance Tax (IHT) bill.

But even if you have a will in place, it’s important to review it regularly. There are several ways a will can be rendered invalid, so it’s important to check your circumstances haven’t inadvertently caused this to happen.

Read on to discover five surprising things that can invalidate a will, and how to make sure yours is kept up to date.

Shifting the conversation from having a will to having a will that’s legitimate in the eyes of the law

It’s fairly common knowledge that it’s important to write a will. But often, the emphasis is simply placed on having one, rather than it being valid.

According to Which?, a third of the members they surveyed said they hadn’t updated their will in the past five years.

But for many of these people, circumstances may have changed. It can be understandable to assume that your will simply stands forever unless you actively change it.

However, this isn’t the case, and there are some surprising ways your will could be rendered invalid.

1. Marriage or remarriage

According to Will Aid, more than half of UK adults don’t realise that getting married automatically revokes any existing will in England and Wales.

This lack of understanding can often cause real upset, for example, by unwittingly removing children from a previous relationship as beneficiaries.

If you get married or remarried, you’ll need to make a new will to state your wishes.

The law is slightly different in Scotland. Your existing will remains valid, but your new spouse will have “legal rights” to part of your estate.

Ultimately, redrafting your will after marriage is the most sensible way to make sure your estate is distributed according to your wishes.

2. Divorce or dissolution

Unlike marriage, divorce or civil partnership dissolution doesn’t automatically revoke your will. However, there are other complications to be aware of.

In these cases, once your divorce or dissolution is settled, your former spouse is treated as if they had died for the purposes of the will. If you’ve left part of your estate to them, it could end up going to other beneficiaries.

But if you’ve left everything to your ex-partner, your estate is treated as if you had no will at all.

3. Not using the appropriate witnesses

Your will needs to be signed by two witnesses who can attest to your own signature on the document. This means you need to sign the will in their presence.

Your witnesses need to be:

• • Over 18
  • Not blind, partially sighted, or visually impaired
  • Not your spouse, civil partner, or beneficiary
  • Considered mentally capable of witnessing your signature.

In some cases, you can watch each other sign the will remotely, via video link.

Failing to follow the proper witnessing process could invalidate your will, so this is important to get right.

4. Informal changes

Once your will has been signed and witnessed, the only way to change it is to:

• • Make a new will
  • Add a codicil, which is an official alteration. The codicil also needs to be signed and witnessed.

Adding extra elements by hand, crossing things out, or making your own unwitnessed alterations can render your will – or at least, the aspects of your will that were changed – invalid. If you want to update your will, you need to do so using the correct procedure.

5. Testamentary capacity

When you make your will, you must have what’s known as “testamentary capacity”, meaning that you have the mental capacity required by law.

There are four key elements to this. You must:

• • Understand the nature of making a will – principally, that it is a legally binding document which disposes of your estate after you die
  • Have a general understanding of the nature of your assets (such as property and investments) and their approximate value
  • Be capable of rational decisions regarding who to include or exclude from your will, in terms of those who might reasonably expect to benefit or have a moral claim on your estate
  • Not have a mental health condition that could prevent you from making a rational decision. The criteria used to measure this include mental illnesses, dementia, and other conditions which may impair your judgement. However, simply having a diagnosis doesn’t preclude you from making a valid will. You can still retain legal capacity, as long as you can understand and make rational decisions about your will.

In some cases, you may need approval from a medical practitioner if the solicitor drawing up your will deems it necessary.

Get in touch

The take-away here is that making a will is good, but keeping your will updated is better. We’d recommend you review your will every two years, as well as after every major life event, to make sure it remains valid.

If you’d like to speak to us about any aspect of your estate planning, please email us at info@harperlees.co.uk or call 01277 350560 to find out more, and we’ll be very happy to help.

Please note

This article is for general information only and does not constitute advice. The information is aimed at individuals only.

All information is correct at the time of writing and is subject to change in the future.

The Financial Conduct Authority does not regulate estate planning or will writing.