The following are the most common causes of legal problems and disputes surrounding a Will. Such disputes can cause considerable distress and expense, and yet with careful attention and/or professional advice they can be avoided.
On this page:
- The Will cannot be found
- The Will is not correctly signed, dated and witnessed
- One of the witnesses is also a beneficiary
- The Will is unfair
Sometimes after a death, there is uncertainty over whether a Will was made, and where any Will that was made has been stored. If your loved ones don't know whether you have made a Will, or they believe you've made a Will but don't know where to find it, this may mean that they have to spend a lot of time searching for it, and if it is not found you will be deemed to have died 'intestate'.
When you make your Will, it is important to inform your executors that you have made a Will, and to let them know where it is stored. For more information on safe storage of Wills and Codicils, see Storing your Will.
Incorrectly executed Wills are a surprisingly common problem, and it is important to note that a Will that is not signed, dated and witnessed according to the rules is not legally valid. If such a Will were challenged in court, it would be highly unlikely to be upheld as a valid record of your Last Will and Testament.
To ensure that your Will is legally valid, observe the following procedure when executing the Will:
- You and your two witnesses must be in the same room at the same time for the whole process of signing and witnessing the Will.
- The witnesses must not be beneficiaries (people who will receive money, assets or anything else from the estate).
- A blind person cannot be a witness.
- You must sign the Will first, using your usual signature, in the sight of both the witnesses.
- Then each witness must sign in your sight and in the sight of the other witness.
- The Will must be dated with the date that it is signed and witnessed.
- You must not attach any additional pages to the Will.
People who receive anything from your Will, and their spouses and partners, cannot be witnesses to the Will signing. If this does happen, it does not invalidate the entire Will, but it does prevent your witnesses from receiving any benefit from the Will. In other words, the gift that you had intended to leave them will 'fail'.
To ensure that this does not happen, choose witnesses who have no interest in (nothing to gain from) your Will.
If your Will contains instructions to distribute your estate in a way that is seen as unfair by your surviving loved ones, it is possible that it will be altered or challenged after your death:
- A spouse or dependent that has not been provided for in your Will may apply to the courts for money from your estate, under the Inheritance (Provision for Family and Dependants) Act 1975.
- Where all beneficiaries agree that a change to your Will is required, they may execute a Deed of Variation, sometimes known as a Deed of Family Arrangement, within two years of your death.
To ensure that your wishes are carried out, it advisable to make sure that your Will provides for all your dependents, and if you do wish to exclude someone or leave any large legacies to others, you should take legal advice.