What Makes a Will Legally Binding?

Personal planning for the future certainly has to include making a Will. Because of the testamentary freedom rules in England and Wales you can leave all of your money and property to whoever you wish. To make sure that this happens, you have to ensure that your wishes are documented in a legally binding Will, which follows strict legal requirements. 

Making Sure your Will is Legally Binding

To be legally valid a Will must meet the stringent signing requirements contained in legislation. A Will must be made in writing and signed by the person making the Will with two witnesses present. Witnesses then also have to sign the Will in the presence of the individual making the Will and in the presence of each other. It is important to note that the chosen witnesses should not be anyone named as a beneficiary in the Will or the partner or spouse of a beneficiary. Using a beneficiary or their spouse as a witness means that they will not inherit what is left to them in the Will.

The Will should also be dated - although it will not be invalid without a date, the Court will require evidence to prove the date of attestation and that the Will presented for probate is the last Will written by the testator. 

At the time of making the Will, the person must be over the age of 18, unless they are in the active military service.  

It is under the Wills Act 1837 that this is required, stating that "No Will shall be valid unless — " the above is followed. 

What other Requirements are there to make your Will Legal?

Even if you ensure that the above is closely followed, the validity of a Will can be challenged if suggestions are made that could indicate that the testator (the person who made the Will) was under the influence of someone else. Being under influence means that they may have been threatened or put under pressure by another person to make a Will or amend their current one. The threat itself does not have to be physical, it can also be one that could threaten acting on something, such as suggesting they may put a family member in a care home. Undue influence can be identified by unexpected changes that cannot easily be explained. For example, the Will might be altered to benefit one family member more favourably than others, or to remove beneficiaries so that the influencer receives a larger share. At Simpler Law, we have processes in place to protect the testator and identify this kind of influence. We also train our staff to spot signs of influence early on in every appointment. 

The Testator Has to be of Sound Mind

The person making the Will must have the capacity to understand the decisions they make. The general test for testamentary capacity is that they should understand the money and assets they own, as well as an understanding of who should expect to inherit and what the consequences are for those who are left out of the Will. Along with this, the individual must also be able to make decisions for themselves. Simpler Law advisors are expertly trained in how to identify and document any issues with capacity during a client appointment. 

Are Copies of a Will Valid?

Any copy of a Will is for yours and your Executors' reference and cannot used in place of a valid Will. Should you pass away and the original Will cannot be located, your family can be asked to sign a Statement of Truth to confirm the circumstances around the lost Will, but it is not guaranteed that the Court will accept it and the administration may proceed under a previous Will or the Rules of Intestacy. The only way to ensure your wishes are carried out is to make sure your original, signed and valid Will is kept safe. One way to make sure your Will is safe, is by having it kept in fully insured, secure storage. 

What Happens if a Will is Invalid?

If a Will is considered invalid, then the estate will be distributed according to the last valid Will or even via the Rules of Intestacy if no previous Will can be located. Under the Rules of Intestacy, the spouse or civil partner will inherit the whole estate unless they have children. If this is the case, then they will receive the first £322,000 of the estate and belongings as well as half of the remaining estate. The remainder will then be distributed between all children. If there is no spouse or children, then other relatives will inherit according to a strict priority list. 

How to be Sure Your Will is Legally Binding

The best way to ensure a legally binding Will is to use a professional Will Writing Service. At Simpler Law in addition to our highly trained and knowledgeable advisors our accessible, jargon free advice is insured for up to £5M to protect our clients.  

Contact us today to discuss your requirements, or call 0333 600 1000.