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You may already have a current Will in place, but is it valid?
However you made the Will, whether with professional advice, or with a DIY Will writing kit, it is worth checking that it is valid. Having a valid Will gives you control over what happens to your property, money and possessions, who benefits from your estate and who deals with its distribution after you die.
If you die with an invalid Will in place, you will die intestate and be treated as if you didn’t write a Will at all. Sadly not all Wills are valid and we will explain why.
How do I check my Will is valid?
The Wills Act 1837 contains requirements that must be complied with for a Will to be valid. If not all of these apply, your Will may not be valid.
In order for a will to be valid, it must be:
- made by a person who is 18 years old or over and
- made voluntarily and without pressure from any other person and
- made by a person who is of sound mind. This means the person must be fully aware of the nature of the document being written or signed and aware of the property and the identity of the people who may inherit and
- in writing (typed or in ink) and
- signed by the person making the will in the presence of two witnesses and
- signed by the two witnesses, in the presence of the person making the will, after it has been signed.
Although it will be legally valid even if it is not dated, it is advisable to ensure that the Will also includes the date on which it is signed.
Who can witness my Will?
You need two independent witnesses who have no stake in the Will. Witnesses should be impartial.
A Will can be declared invalid on the grounds of ‘lack of due execution’ – this means the correct legal procedure has not been followed. Failing to have two independent witnesses would count as lack of due execution and the Will would be invalid.
Who should not witness my Will?
The following people should not witness your Will:
- Your husband/wife or civil partner
- Any other family members
- Any of your Beneficiaries (the people you intend to inherit from your Estate)
- The husband/wife or civil partner of your Beneficiaries
- Anyone under the age of 18 years of age
- Anyone who is blind or partially sighted
- Anyone who does not have sufficient mental capacity to understand what they are witnessing
If a witness is a beneficiary (or the married partner or civil partner of a beneficiary), the Will is still valid but the beneficiary will not be able to inherit under the will.
What happens if the Will is declared invalid?
If you make a Will but it is not legally valid, the rules of intestacy will apply. These are strict rules that must be followed and could result in someone benefitting from your estate in a way you did not intend. For example, if you have separated from but not divorced a spouse, they will automatically inherit from you under the intestacy rules.
Equally, if your partner is not your spouse or civil partner, they will not automatically inherit under the intestacy rules. Step-children and foster-children would also be excluded and the intestacy rules won’t take into account any other instructions such as funeral arrangements and who cares for your pets.
How do I make my Will?
It is still possible to create or update a Will at present. Our Wills and Probate team are all at work with IT systems enable them to work remotely.
Depending on the technology you have available, there are a number of ways that we can take instructions for your Will. Instructions can be taken over the phone, by video link or using WhatsApp, Zoom conferencing or other methods.
If you want to make a Will, the best thing to do is to telephone us or email us on (01827) 317070 or email eharrison@pickerings-solicitors.com, and we can identify the most appropriate method for your particular circumstances.
How do I find 2 suitable witnesses during the Coronavirus lockdown?
We can discuss signing options with you.
Signing a Will is an exception to the rules on gatherings of more than 2 people and with careful arrangement you may be able to get your Will witnessed by neighbours or nearby friends. Everyone will need to wear gloves and stay 2 m apart from the others present. You need to make sure that you all have your own pens so that you do not touch the same pens.
What you can do is to put the Will on a flat surface outside - weigh it down if you are worried it might blow away! Then everyone can step forward separately to sign the Will. Once everyone has signed place the Will into an envelope before you remove your gloves.
What if I live alone and I am isolating?
If you live alone, and have no neighbours who are able to assist you, please telephone us on (01827) 317070 and we will advise on the best course of action in this circumstance.
