What are some scenarios when a will is either invalid or a specific gift may fail?
As part of the probate process, the executor(s) must provide the court with a copy of the will and evidence that it is valid. The court will then review the will to make sure that it meets the requirements of the Wills Act 1837 and that it has not been challenged by any of the deceased's relatives.
If the court finds that the will is valid, it will grant probate and the executor will be able to distribute the estate according to the will's instructions. However, if the court finds that the will is invalid, the estate will be distributed according to the rules of intestacy.
There are a number of different scenarios when a will might be found to be invalid, which include:
The will is not properly signed or witnessed. The Wills Act 1837 sets out the requirements for a will to be valid in England and Wales. These requirements include that the will must be signed by the testator (the person making the will) in the presence of two witnesses who also sign the will. The witnesses must be over the age of 18 and cannot be beneficiaries themselves or closely related to beneficiaries of the estate. If the will does not meet any one of these requirements, it may be deemed invalid.
The testator lacked mental capacity when they made the will. The testator must have had the mental capacity to understand the nature of their property, the people who might benefit from their will, and the effect of their will. If the testator did not have this capacity, the will may be invalid. In order to have capacity to write a will, the testator needs to understand that they were making a will, understand the extent of their property, understand who their beneficiaries were, and understand the effect of their will. If a person contesting the will can produce evidence to prove otherwise, such as the testator’s medical records, the will may be deemed invalid.
The testator was subject to undue influence when they made the will. Undue influence is when someone pressures or coerces the testator into making a will that they would not have made otherwise. If the court finds that the testator was subject to undue influence, the will may be invalid. For example, if there is evidence that someone befriended an elderly testator with a view to be included in their will, a court may deem the will to be invalid.
The will has been forged. If there is evidence to suggest that a will is not genuine, for example, the signature does not match an original and/or the witnesses cannot be identified, then a court may deem it to be invalid.
The will has been revoked. The testator can revoke their will at any time by destroying it, making a new will, or making a written declaration that they revoke all existing wills and codicils.
In addition to the will being invalid, specific gifts can also fail. A specific gift is a gift of a particular item or asset, such as a house, car, piece of jewellery or heirloom. The gift must be clearly identified in the will so that there is no doubt about what the testator intended to give.
There are a number of different scenarios when a specific gift can fail:
The gift is adeemed: Ademption is when the testator no longer owns the property that they have gifted to someone else in their will. For example, if the testator leaves their car to their son in their will, but they sell the car before they die, the gift of the car will be adeemed and the son will not receive anything.
The gift is ambiguous or incomplete: The gift may fail if it is not clear what the testator intended to give or who the beneficiary is supposed to be. For example, if the testator leaves "my car" to their son in their will, but they have two cars, it will not be clear which car the son is supposed to receive.
The gift is disclaimed: Disclaimer is when the beneficiary of a gift chooses not to accept it. For example, if the testator leaves their house to their daughter in their will, but the daughter decides that she does not want the house because it is in a state of disrepair, she can disclaim the gift and the house will pass to the next beneficiary in the will.
If a specific gift fails, the rest of the will will remain valid. However, the gift will be distributed according to the rules of intestacy. This means that the gift will be distributed to the testator's closest surviving relatives.
It is important to carefully consider the terms of a specific gift when drafting a will. The gift should be clearly identified and the beneficiary should be named. It is also important to make sure that the gift is enforceable. For example, if the gift is a car, the testator should make sure that they are likely to own the car when they pass away. It is also good practice to review and update your will every few years to ensure that your wishes remain valid.
