Invalid wills

If wills are not properly executed, an estate may not be properly administered. This will lead to the testator’s wishes not being carried out and beneficiaries missing out of their entitlement.

Usually on the discovery of an invalid will, executors will look to the previous will or, if one does not exist, the testator’s estate will be administered according to the intestacy rules.

When can a Will become invalid?

  1. Witnesses

A will must be signed in the presence of two witness, who in turn must also sign in the presence of the testator. If the witnesses are also beneficiaries, the will remains valid, but the particular gifts to the witnesses will fail.

If the will is not witnessed, or not properly witnessed, it may be held to be invalid.

  1. Capacity

A will may be invalid if the testator does not have testamentary capacity. To have testamentary capacity, the testator must be able to understand:

  • Who the beneficiaries are, and that they will receive the assets.
  • The testator must not be influenced when deciding how the estate should be managed
  • The implications of including or excluding certain people as beneficiaries
  • The size and extent of the estate.

One common ground for contesting a will is on the basis that the testator lacked capacity due to old age or illness such as dementia. However, it is usually difficult to argue such a case, especially if one of the witnesses is a medical practitioner.

  1. Destruction/alteration of Will

A will may be invalid if it destroyed or there are comments/marks on it. The law presumes that if a will has been destroyed by the owner then it was done intentionally.  Evidence can be provided to the contrary however.

  1. Undue influence

If it is shown that a testator made a will under the influence of someone else, or has not made rational intentional decisions in making a will, it may be invalid. The onus will be on the person challenging the will to prove that the will was made under undue influence. This can however be difficult to prove if the testator is deceased and will often require witness evidence.