Wills can be revoked in several ways and often this can happen without the deceased’s knowledge. In this article we look at why this happens.
There are a few different reasons why a Will may be revoked and it is possible to do this accidentally. For example, Wills are automatically revoked when someone marries or enters into a civil partnership (unless that Will is expressly stated to me be in contemplation of marriage).
If a Will has been lost or destroyed, it is also presumed to be revoked, although in some circumstances, it is possible to dispute that presumption.
In this article we look at the different ways a Will can be invalidated and why.
How Wills can be revoked
Execution of the Will
The Wills Act 1837 has specific requirements for the contents, signature and witnessing of a Will. If a Will has been prepared informally, it often does not meet these requirements and is no longer valid. It is vital that the Will is signed by the testator in the presence of their witnesses.
There may be reason to challenge the validity of the Will if there is any doubt as to the execution of the Will, including whether the witnesses were present for the signing of it.
Lack of knowledge and approval
A person’s Will must be made with their ‘knowledge and approval’ of its contents. Disputes on this point do not often arise, as there is a presumption that a validly executed Will has been made with the testator’s knowledge and approval.
If there is any doubt as to whether the testator was able to understand the terms of the Will, or whether the Will was read and explained to the testator prior to them signing it, there may be cause to investigate whether the Will was valid on the basis of a lack of knowledge and approval.
Lack of testamentary capacity
Disputes often arise in circumstances where the deceased prepared a Will later on in life.
A testator must have what is known as ‘testamentary capacity’ or the capacity to understand the nature and extent of their affairs, and how they wish to distribute them, to be able to create a valid Will. There is a specific test, known as the Banks v Goodfellow test, which is used to establish whether the deceased had testamentary capacity.
If it’s found that the deceased did not have testamentary capacity when preparing their Will, it will not be valid.
Undue influence
If it is found that a person has put ‘undue influence’ on a testator, which results in the testator making a Will in terms that are not their true intentions, the Will is likely to be found invalid by the Court.
A testator is more likely to have been unduly influenced in circumstances where they are vulnerable, reliant on someone for their care, or has a close emotional or familial tie to the person accused of unduly influencing them.
Fraudulent calumny
Fraudulent calumny is a situation where a person lies or deceives the testator to encourage them to disinherit a natural beneficiary of their Estate. An example of this may be where a carer tells the testator that their child does not try to visit or contact them, which results in the testator disinheriting their child.
If it is found that the testator was deceived when preparing their Will, a Court is likely to find that the Will is not valid.
What happens if the Will has been revoked?
Although an invalid Will may clearly show the deceased’s intentions, if it’s found to be invalid it is unenforceable. In that case, the deceased’s estate will either be administered according to an older valid Will, or in accordance with the Intestacy Rules.
It is important to seek specialist legal advice early if you are concerned about the validity of a loved one’s Will.
For more information on the grounds which you can challenge a Will, please see our previous article series here. If you would like to find out what claims can be made even if the Will is considered valid, please see our article here.
If you are concerned about the validity of a Will or would like to learn more about how Wills can be revoked accidentally, please get in touch and our specialist team can advise you.