We frequently receive calls from clients who are unsure whether a Will is valid. So, when does a Will become null and void?
The Will
The Will itself is the starting point. There are very strict rules that govern how a Will must be carried out. According to these rules, a Will must be signed by the testator in the presence of two witnesses in order to be valid. While this may appear obvious, we see many cases where the testator did not sign the Will, the witnesses signed at different times, or there are problems with the signature itself.
Wills are frequently not signed in the presence of at least two witnesses, which is by far the most common mistake we encounter.
The Will is ambiguous.
The terms of a will are sometimes ambiguous or simply incorrect. In these cases, the Will may not be completely invalid, simply the ambiguous or incorrect clauses. As an example:
- Mistakes in Wills regarding gifts with ambiguous amounts
- Gifts failing because the Testator no longer owned the asset This is common with real estate – we have acted in many cases where gifts in Wills fail because the testator no longer owns the asset.
- Gifts made to beneficiaries who are no longer alive because the Will lacks a substitute clause ( eg. what happens to the gift if it fails )
Lack Of Capacity
The Testator must have had the mental capacity to make a Will. Many Wills are challenged because the testator lacked the necessary mental capacity.
Wills created under duress
We unfortunately see many Wills made when the testator was coerced or forced to make the Will. If undue influence is proven, these Wills can be challenged and made invalid.
What happens when a Will is declared null and void?
If a Will is declared invalid, either an earlier Will or the intestacy rules take effect.
