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.

The Next Step

Now that you have read through the advice above, you might want to put it into practice. Our Do I Need a Will? Checker lets you answer a few questions to find out whether you need a will and what type. Try it now →