Why would a Will fail?

The question of why would a Will fail is an interesting one and it’s well worth exploring if you’re going through the process of writing your Will. In this article, we are explaining what creates a binding Will and what could make your Will invalid.

A Will is the only legally reliable method by which one may pass possessions on death. It is arguably one of the most important documents that you ever make but it can go wrong if it’s not a binding Will.

We strongly advise seeking professional advice, as a failed will may cause real harm to those left behind. In this article, we look at factors which might interfere with a will’s effectiveness, could make it invalid or when done properly, makes it a binding Will.

Testamentary capacity

 In order to make a binding will the party making the will (the testator) must be of ‘sound mind’. For the purposes of a will, the definition is fairly narrow, and might be taken to mean that the testator (being 18 or over) understands: i) that their beneficiaries will receive their assets on death; ii) the ‘nature and extent’ of their estate (what they’re leaving by their will); iii) the ramifications of including/excluding certain people from the will. Recognition is also given to certain conditions which might affect mental capability. 

A professional will work to address the above. If there is doubt a professional mental capacity test might be required. 

Undue Influence. 

A will must be made voluntarily (as the name implies). In one sense, everyone ‘influences’ everyone with whom they have contact. If, however, it can be demonstrated that one has been coerced (emotionally or physically) into making a will it may fail. Seek legal advice if you think this the case!

Improper signing of the will

A will must be signed by the testator and two independent witnesses (in the presence of the testator). In my experience, the rules relating to signing are often more flexible than people imagine. Notwithstanding, care must be taken to ensure that the witnesses meet certain criteria (e.g. of sound mind, sighted etc.). As part of regulation, will writing firms are required to advise on signing and to support if required. It’s worth mentioning that emergency law, introduced during Covid to permit video witnessing has now lapsed. 

Forgery

Submission of a forged will e.g. one signed by another, is a surprisingly common and self-explanatory reason for a will’s failure. 

Revocation

All too often, in the absence of proper advice and access to facilities, a will is accidentally revoked. The most common means by which this happens is loss. A will may be ripped up by a testator in English law, in order to revoke it. If a will is lost whilst in a testator’s possession, this is assumed to have happened. Revocation may also arise as a result of defacement of a will e.g. by water damage or well meaning testators seeking to amend. Always seek advice before attempting to change a will. 

Provision for family

In addition to the above, one should bear in mind the Inheritance (Provision for Family and Dependents) Act 1975, which places some demand on the testator to gift to dependents, children and spouses. 

Challenges to a will

Even if a will ultimately holds water legally, challenges and arguments arising therefrom are often destructive and best avoided. A well written letter of wishes may explain a testator’s decision making process and ameliorate feelings of bitterness in those left. Dialogue is also to be encouraged.

The vast majority of those making wills appoint professionals to do so. If you would like to discuss progressing such a document, please contact us to get the ball rolling.