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Contested Probate: The Difference Between A Valid And Invalid WillProbate and the Invalid Will. photo of elderly man

If you are thinking about contesting a will and challenging probate, then you need to know exactly what makes a will invalid as opposed to valid.

Thinking of contesting probate? Call our highly experienced team on FREEPHONE 0800 1404544 for FREE initial phone advice – no strings attached.

What is a Valid Will?

All Wills must be correctly executed and comply with the Wills Act 1837.  A valid will should be made by a person over the age of eighteen. The person must also be of sound mind, know completely what they are doing and the consequences of their actions. They should ideally seek legal advice before making the will as this means the will is much more likely to be valid than if they did it all themselves.

The will must also be written without undue influence from any party and the provisions set down by the document must be at the instigation of the testator. The will must be signed by the testator and witnessed by two people who are not beneficiaries.

The witnesses must also sign to declare that, to the best of their knowledge, the will is valid. If the will is appointing a guardian for a child, it must also be dated.

What’s more, any formal amendments to a Will (known as “a Codicil”) must be executed in exactly the same way as a Will for that amendment to be valid.

What makes a Will Invalid?

There are certain circumstances under which a will is invalid. In particular, if any of the above conditions are not met in a person’s will, then there could be grounds for disputing a will.

For example, if a will has not been signed by the testator and two impartial witnesses, it could be rendered invalid. Similarly, if you have evidence that the person was not of sound mind when they made the will, you can challenge it.

Remember that, by and large, people can choose to leave their estate to whomever they choose: proximity of relation to the deceased does not necessarily entitle you to an inheritance unless you were financially dependent on them.

If this is the case and you have been left out, then you contesting a will may be an option. Otherwise, the only ground for disputing a will is if it is expressly invalid.

Contesting A Will When You Are Concerned It’s Not Valid

Contesting a will is a big decision to make as the process of doing so can often be long and draining. If you think, however, that the will in question is in some way invalid, then you may be entitled to contest it in an attempt to have it overturned.

A valid will is deemed to be one that was made by a person over 18, in sound mind, not under duress and in the presence of two witnesses, neither of whom can be beneficiaries and who must sign the will along with the testator. If one or more of these conditions fails to be met, then you may have grounds for successfully contesting the will.

Common reasons for an invalid will

There are many reasons why Wills can be found to be invalid. And the growth in the number of DIY Wills has inevitably seen an increase in the number of problems. Here are some of the most common grounds for invalidity:

• Was the person who made the will aware of what they were doing? Was the Testator not mentally competent and able to understand what they were doing when they executed their Will. If you fear that they had mental health issues and may have been confused when they made the will, then you might be able to contest it, as long as you have evidence.
Click here to read more about Mental Capacity and Wills

• Are you dealing with the probate process for the deceased? If you have reason to suspect that the person in question made a subsequent document that might have detailed different inheritance claims, then this is also grounds for contesting a will.

• Has the will been signed and witnessed properly? Contesting a will can often be tricky as courts tend to assume any will is valid until proved otherwise. Lack of signature could be grounds for challenging it, as could any evidence that the signature does not appear to be genuine

•Was the will made under duress? If the deceased didn’t actually intend to make a will and you can prove that they were pressured into it, perhaps by someone who was looking to make undue inheritance claims, then contesting it is an option.

• Is the will the genuine article? Often, if you cannot find the original copy of a will and are dealing with other copies, then you may be able to contest it on the grounds that the original was lost.

• Was the will forged? If you can successfully prove that it was an act of fraud by someone other than the deceased, then bought should declare that will to be invalid.

Marriage, divorce and the birth of children also usually cause automatic invalidation, revocation, or alteration of part or all of a Will. Partial invalidity can also occur when any witness to the Will is in fact also a beneficiary – when the gift to that beneficiary fails.

Probate – Proving Invalidity

The really important thing to remember is that you need to be able to prove any claim you make.

Contesting a will often fails because there is simply not sufficient evidence to back up their claims. Without just cause for your case, it is likely that the court will rule in favour of upholding the will of the deceased as they must assume it’s a valid unless they can be persuaded otherwise.

If there are any doubts as to the Will being genuine it is always sensible to speak with the witnesses if they are still alive

Click here to read more about Contesting a Will

Contested probate – a warning.

Just because you can challenge a will doesn’t mean you should. Before embarking on any contested probate application, please give some thought as to the implications for your relations with friends and family who may be involved. We see far too many cases where contesting probate ends up splitting a family forever – probably the last thing your departed loved one would have wanted.

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