What Makes a Will Legally Binding?


Planning for the future has to involve making a Will. Due to the testamentary freedom rules in England and Wales you have the ability to leave all of your money and property to whoever you wish but, to make sure that happens, you have to ensure that your Will follows the strict legal requirements that make it a valid document.


What are the Requirements for a Valid Will? For a Will to be valid, it has to be made in writing and signed by the person making the Will with two witnesses present. The witnesses must then also sign the Will in the presence of the person making the Will and in the presence of each other. However, the witnesses and their partners cannot be beneficiaries that are named in the Will otherwise they will not be able to inherit. The Will also should 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. In addition, the person making the Will must be over the age of 18 with the only exception being if they are in the active military service.


Even if the above is closely followed, the validity of a Will can be challenged if suggestions are made that could indicate that the testator was under the influence of someone else. This means that they are threatened or under pressure by someone else to make a Will or make changes to a Will. As a result, the threat does not have to be physical but it can be one that could threaten to take action such as threatening to put a family member in a care home. The undue influence could be identified by unexpected changes that cannot easily be explained for example the Will might be altered to benefit one person more favourably or to remove beneficiaries so that the influencer gets a larger share.


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 have an understanding of the money they have or the property they own as well as well as who should expect to inherit and what the consequences are for those who are left out of the Will. Along with this, they must also have the ability to make decisions themselves.


If a Will is Invalid, What Happens? 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 is present. 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 £270,000 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.

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