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How Legally Binding is a Will?

By: Chris Nickson - Updated: 12 Jun 2018 | comments*Discuss
 
How Legally Binding Is A Will?

Making a will is something we all know we should do, but many of us keep putting it off. It’s understandable – a will reminds us of our own mortality, something we don’t want to think about, and it involves working with the legal profession and legal documents, something many of us would rather avoid!

Wills can be challenged, and, of course, there’s no way you can defend yourself at that point. People – which in this case would generally be relatives – can challenge a will if they feel they haven’t been adequately provided for under the provisions of the will or if they feel the will is invalid for some reason – if the person wasn’t of sound mind when they made it, for instance, or was heavily influenced by another person. At times these legal challenges will succeed.

Making a Will That’s Valid

There are will-making kits available and for many people with simple estates, they’re adequate. Whether you do it from a kit or through a solicitor, though, there are certain requirements that have to be fulfilled when making a will for it to be legal.

You have to be over 18, of sound mind, to understand what you’re doing, and be aware of the property you’re leaving and the people to whom you’re leaving it when making a will. It must be made of your own volition and without any outside pressure from people who might benefit.

When your will is complete, you need to sign it in the presence of two witnesses, both of whom must add their own signatures – that makes it into a legal document. To keep the process above board, neither a witness nor their spouse can benefit from your will. If any of them is due to inherit, they can still be a witness, but it means they can’t benefit from the will.

Whilst not vital to a will’s validity, when making a will you should also include the date you sign the will.

Of course, circumstances do change, and you might want to change your will. For a proper legal document, you could either make a new will or add a codicil. Unless there are big changes, a codicil, or amendment to the will, might well be adequate. Like the original will, it needs to be signed and also have the signatures of two witnesses to become a legal document, although they don’t have to be the same people who signed the original will.

You can destroy a will by tearing it up or burning it – but you have to do it yourself, or it must be done while you’re there. You also need to make sure that your new will has a clause revoking all prior wills.

Challenging a Will

One thing to be aware of is that there are time limits for challenging a will, so you’ll need to act quickly through a solicitor if that’s your intention.

As long as the will was created properly, it can be difficult to challenge. If your legal challenge is based on the idea of unsound mind or undue influence of another person, you’ll need to have very solid evidence to prove your case, as the law allows a great deal of leeway to those making a will.

There are circumstances under which people who feel they haven’t been provided for can challenge the will, although they only have six months from the grant of probate in which to do so. Former and current spouses and civil partners can challenge, as can those deemed “children of the family” (which might not apply to adult children) or someone with whom the deceased has co-habited for two years prior to death.

A person with a substantial financial interest in property owned by the deceased – someone who owned the property jointly, for instance, or to have given a substantial sum to the upkeep of property owned by the deceased – might have a claim outside the will, but legal advice would be necessary.

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A codicil had been created in 2011 in addition to a will made in 1993. In 2009, the person was deemed to suffer from dementia and yet has signed a codicil even though the legal firm and witnesses were informed of the dementia by his wife. Professional medical evidence indicates the individual suffered from dementia and no medical expert was present when the codicil was made. While the individual had the capacity to sign a document, medical evidence indicate that the person did not have the capacity to understand the legal terminology presented to him with regards to the codicil and any issue relating to a will or codicil. Is the codicil invalid? Was the individual coerced to signing by the legal firm? Is a medical expert required to be present for someone with dementia prior to signing such legal documents? Do the executors/beneficiaries need to be informed to invalidate a codicil? What can be done in such a case?
Markymark - 12-Jun-18 @ 12:21 AM
My mum recently passed away and in her will she appointed myself and my sister as executors. We're trying to sort out her estate and one of her debts is to a catalogue company.I've written to the company with a copy of the death certificate which they've returned, but they won't give me the final outstanding balance unless I send them proof that probate has been applied for ( it hasn't because the bank don't require it due to the level of funds) or a copy of the will.Am I able to send them a photocopy rather than get the original from the solicitors that prepared it?
Lou - 15-Jan-18 @ 8:31 PM
Angela - Your Question:
My sister and I are executors to my parents joint Wil. Both patents has passed. My sister has a copy of the Will and not given it to a solicitor. She and my other siblings are acting as if there is no Will and have aponted 2 other siblings to act as administrator in regards to my parents property abroad. When I confronted them about lodging it with a solicitor they said it was to late to do so.Please advice what I need to do as I can't get a copy of the Will I had ask my sister (other executor) for a copy but hasn't done so.

Our Response:
Have you spoken to a solicitor about this?
TheWillExpert - 3-Jan-18 @ 2:31 PM
My sister and I are executors to my parents joint Wil. Both patents has passed. My sister has a copy of the Will and not given it to asolicitor. She and my other siblings are acting as if there is no Will and have aponted 2 other siblings to act as administrator in regards to my parentsproperty abroad. When I confronted them about lodging it with a solicitor they said it was to late to do so. Please advice what I need to do as I can't get a copy of the Will I had ask my sister (other executor) for a copy but hasn't done so.
Angela - 31-Dec-17 @ 5:01 AM
Hi my mother recently died before she passed she changed the executers to my sister and her husband. It was my sisters solicitor that was there and her and her husband.The Wills were witnessed signed and dated. My sister has apparently told other siblings that the Wills are not legally binding is this true. I think my parents were pushed into this as my sister borrowed a massive amount of money from my parents which meant them taking a second mortgage which now they are just paying interest on second mortgage. Something just isnt right what can i do
Lou - 22-Nov-17 @ 3:37 PM
Jay - Your Question:
My parents have left their house to me and my sister in their will but there is a daughter from my dads first marriage (not his by blood) that he raised to the age of fifteen that is excluded in the will. Can she contest this? Also, there is another sibling from his first marriage that isn’t his by blood, if excluded in their will, can he contest this as well? My parent are adamant that only myself and sister have any inheritance.Many thanks

Our Response:
If the other children are not the biological offspring of your father, it will be difficult for them to contest it.
TheWillExpert - 31-Oct-17 @ 3:20 PM
My parents have left their house to me and my sister in their will but there is a daughter from my dads first marriage (not his by blood) that he raised to the age of fifteen that is excluded in the will. Can she contest this? Also, there is another sibling from his first marriage that isn’t his by blood, if excluded in their will, can he contest this as well? My parent are adamant that only myself and sister have any inheritance. Many thanks
Jay - 28-Oct-17 @ 11:25 PM
Drella - Your Question:
My mother has lived in a house as a tenant for over 30 years. Her original landlady passed away in 2003. The new landlady, the step daughter, told my mom that in the will it stipulated that my mother could live in the house for as long as she wanted or until she passed and that her rent could never be raised. This week my mother received a phone call from the landlady's son that they are not going to honor the promise made and they now want to sell the house. Does she have any options at this point? Thank you for any guidance.

Our Response:
Did she receive any confirmation in writing about this? It might be wise to seek legal assistance on the basis of what the step daughter told your mother.
TheWillExpert - 18-Oct-17 @ 3:42 PM
My mother has lived in a house as a tenant for over 30 years. Her original landlady passed away in 2003. The new landlady, the step daughter, told my mom that in the will it stipulated that my mother could live in the house for as long as she wanted or until she passed and that her rent could never be raised. This week my mother received a phone call from the landlady's son that they are not going to honor the promise made and they now want to sell the house. Does she have any options at this point? Thank you for any guidance.
Drella - 17-Oct-17 @ 11:41 PM
Hi, my great Gran has recently passed away and she has left her house to myself and brother in her will, on the condition it is sold as possible after her death. The house was purchased for her by my mother and father; and since then my Gran has moved in to care for her. Since she has stipulated that the house is to be sold, does this absolutely have to happen or can myself and brother supersede this?
Mash1ey - 14-Oct-17 @ 9:24 PM
Candy - Your Question:
My dad had a revised will drawn up in 2012, leaving all his possessions to the thre children. Then in 2015, he had his house deeded to himself, and his eldest daughter and her husband, who had moved in with him. Now that he's deceased, does the property still need to be divided three ways, or, just one half the property divided three ways and the daughter retains the other half?

Our Response:
If his daughter has a share in the property and is listed on the deeds as such, it will be the remaider of the estate/possessions that is divided between you.
TheWillExpert - 11-Oct-17 @ 3:00 PM
My dad had a revised will drawn up in 2012, leaving all his possessions to the thre children. Then in 2015, he had his house deeded to himself, and his eldest daughter and her husband, who had moved in with him. Now that he's deceased, does the property still need to be dividedthree ways, or, just one half the property divided three ways and the daughter retains the other half?
Candy - 10-Oct-17 @ 3:24 PM
Nisey - Your Question:
My uncle wants to make me executor of his will. He does have one estranged adult daughter that he doesn't want to leave anything to. Could she come back after he's gone and sue me or the estate?

Our Response:
You can't be sued for being an executor of an estate and being an executor doesn't automatically mean you're a beneficiary either.
TheWillExpert - 31-Jul-17 @ 10:10 AM
My uncle wants to make me executor of his will. He does have one estranged adult daughter that he doesn't want to leave anything to. Could she come back after he's gone and sue me or the estate?
Nisey - 27-Jul-17 @ 5:31 AM
Muzz - Your Question:
In my dads will he want too be BURIED and my step mum had him CREMATED what can I do ??

Our Response:
There's not much you can do at this stage unfortunately. You could take legal action against your step mum but it would not gain you anything really.
TheWillExpert - 3-Jul-17 @ 2:18 PM
In my dads will he want too be BURIED and my step mum had him CREMATED what can i do ??
Muzz - 2-Jul-17 @ 12:48 PM
My mother died last year and my family and I only found out about 4 months ago, there was fraud involved and the person has been arrested. The Executor of the will is someone who groomed, used and spat my mum out! I have been liaising with the banks and they told me that the Executor hasn’t provided them with the will, and the bank has given me the money. My family and I want all the money to go to my mother’s charities, my concern is that my mother didn’t want her children to have any money. (this is stated in the will) My question is as the bank are aware of the Executor, is there a deadline to submitting the will. Also is my family allowed by law to accept this money and give to my mum’s charities? Can we also challenge the will?
Justice1 - 29-May-17 @ 4:04 PM
Tj - Your Question:
Advice needed. My in laws made some changes to their will. Firstly they added my husband as 1/3 owner of the property (FIL & MIL other 1/3 each). They stated that when they had both died my husband would take over ownership of the house and that 2 other members of the family would each receive £10,000. What we need to know is whether this is enforceable as there is no money just the house? Can my husband be forced to sell the house to pay that £20,000. I don't know why my FIL stated this sum as there isn't that sort of cash available. Thanks in advance.

Our Response:
Usually when a Will is written, if a specific amount is included is will say where it is (e.g bank account, share account, savings etc). If the money is to be taken from the proceeds of the house sale, the Will should specify this.
TheWillExpert - 2-May-17 @ 11:11 AM
Advice needed. My in laws made some changes to their will. Firstly they added my husband as 1/3 owner of the property (FIL & MIL other 1/3 each). They stated that when they had both died my husband would take over ownership of the house and that 2 other members of the family would each receive £10,000. What we need to know is whether this is enforceable as there is no money just the house? Can my husband be forced to sell the house to pay that £20,000. I don't know why my FIL stated this sum as there isn't that sort of cash available. Thanks in advance.
Tj - 1-May-17 @ 12:09 AM
How does a "Family Trust" effect a will? If the will was made then placedo in a family trust, does the trust need to be dissolved before changing the will? Adding on to that question, if you are the sole owner of property from a will that is in a trust, but your will is also in said trust and has three benificiaries... Does this change the rules??
Joe - 5-Feb-17 @ 5:25 PM
I want to write my first will. I am an only child, my mother and father have both passed away. I want to leave all my assets to my two nephews. Would a off the shelf, diy will, be adequate for my circumstance?
Chelseablueboy - 2-Jan-17 @ 2:01 PM
Lillie - Your Question:
Our only child (an adult) died in 2015, but we have two godchildren, now both young adults. Can we leave our assets to them.and will it be binding?

Our Response:
Yes if you specify it correctly in a Will. It might be worth seeking legal advice if you think it likely that someone would contest it.
TheWillExpert - 29-Sep-16 @ 10:34 AM
Our only child (an adult) died in 2015, but we have two godchildren, now both young adults. Can we leave our assets to them.....and will it be binding?
Lillie - 28-Sep-16 @ 4:13 AM
an elderly relative has died revoking her will, i understand the process of obtaining and stopping a grant of probate (she apparently made a new will) can a solicitor get a copy of her revoked original will and how would they apply to the courts to get this. would it just be a case of requesting it from the firm of solicitors she made it at ?
chezza - 25-Apr-16 @ 5:31 PM
Hello my friends, welcome 2 my house
donaldduckasfuck - 11-Apr-16 @ 9:09 AM
Dear Will Experts, I would be grateful if you could answer my question posted on 21-Mar-16 @ 10:12 PM Thanks and best regards Shazad
Shazad - 24-Mar-16 @ 8:54 AM
Hi, My brother is divorced and has two kids from his first marriage. He signed over his share of the property to his ex-spouse. He is also re-married and lives with his new spouse and has a daughter with her. His new spouse also has a son from a previous marriage. They all live together. His ex-spouse is drawing up a will in which she is also claiming my brother's share of our parents house. This is currently under my widowed mother's name. I have one other sibling. We are 3 in total. My mother is drawing up a will and will be leaving the property to me and my sister only. She's cutting my brother out of the will. His ex-spouse is also trying to claim a share in the house my brother and his current spouse live in. Following this she is attempting to get him to sign this Will as well. He has refused to do so for now. This house was paid for in cash by my brother's new spouse and is only in her name. She bought this long before she married him. They also had an islamic wedding here in the UK and I think this carries no legal weight here unless they officially declare this in a registration office. I guess my question is how much of a claim can my brother's ex-spouse make on my mother's house and my new sister-in-law's house? If my mum's will cuts my brother out (due to his ex-spouse's intentions) then can this be challenged by her?
Shazad - 21-Mar-16 @ 10:12 PM
My father passed away 2 weeks ago I looked after him and was with him when he died we found a do it yourself will and he had left everything to his stepson the executive of the will was his uncle and it was made in 1991 when his mother died it has not been updated how do I stand legally being the only blood relative left ?
Ward - 11-Mar-16 @ 5:12 PM
My mother and father in law bought my grandparents house. My grandparents still lived in the house (not with my mother or f.i.l) and it was agreed in wills, that this would be the case until both my grandparents had passed. Recently, both my mam and nana have passed and it has come to light that some time after the original wills had been written, my grandparents changed their wills and have left the house to their son, my mams brother and the rest of their belongings to other daughters but not my mam. Apart from the possessions, Is this allowed as my mam and f.i.l bought the house outright many years ago. This is going to cause huge family problems that none of us need at this moment.mplease can you help? Thanks
Daisy - 14-Jan-16 @ 11:56 PM
MrsBear - Your Question:
After the death of my parents, my brother and I agreed for me to buy their house. My brother agreed to a lower payout for his share and signed an agreement a while ago as he had lived in the house for a while after my parents passed. He is now asking for more money for his share of the property and denying our agreement. We are both named as executors. Does my brother have a case in law even if I produce the agreement he signed agreeing to the lesser amount?

Our Response:
We don't have enough information about the details of the Will or your agreement. You should seek advice from a legal professional.
TheWillExpert - 6-Oct-15 @ 1:52 PM
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