Many of the estates we deal with at Finders International belonged to people who didn’t leave a Will, but we also deal with cases where Wills are null and void, which means that the estate is treated as intestate too.

What makes a Will void? DIY Wills have become more popular in recent years, as people have been attracted to their much lower cost than employing a solicitor or Will writer to do so, but they obviously have much potential for not being viewed as a proper ‘contract’ after you have died.

But sometimes a simple mistake in a Will drawn up by a solicitor can also invalidate the Will, and there might be arguments that the person who wrote the Will did not have the mental capacity to understand what they were signing.

Who can make a Will?

In England and Wales, everyone who is aged 18 and over can make a Will, providing they understand that they have the capacity to do so. They know their beneficiaries will receive their assets and the extent of their estate, recognise the implications of including or excluding certain people as beneficiaries and are judged as not suffering from a ‘disorder of the mind’ that might affect their views.

As the population has aged over the years, there is an increasing prevalence of conditions such as Alzheimer’s and dementia. The Law Commission is reviewing the law around Wills to simplify assessments about capacity and bring them in line with the Mental Capacity Act of 2005.

DIY Wills are likely to make claims challenging those documents more likely, where invested parties question the capacity of the person signing the Will. Any professional Will writing service should include an assessment of the testator’s mental capacity, making it more difficult to challenge the Will on that basis, though if the DIY option is still preferred, one option might be to have the Will witnessed by the testator’s GP.

When is a Will invalid?

Improper execution is another reason a Will might be judged invalid. For instance, is a will valid if not witnessed? A Will must be in writing and signed by the testator (or the testator must acknowledge their signature) and be signed in front of two witnesses at the same time, who also sign or attest the Will or acknowledge their signature in front of the testator.

New rules were brought in by the Ministry of Justice in September 2020 in response to the global pandemic and video witnessing was legalised, though the sound and film quality needs to be clear, and Wills cannot be electronically signed.

Witnesses must be over the age of 18. If they will benefit from the Will or are married to a beneficiary, this does not invalidate the Will but the gift to them or their spouse would not apply. If the witness is someone who would inherit under intestacy rules, this too would create complications.

Marriage changes everything

A marriage revokes all previous Wills, although a Will that states it is being made in contemplation of marriage, this suffices. But if someone is remarrying, this can cause issues if the Will is not updated. If the previous Will left money to the children from someone’s first marriage and then that person remarries and dies before making a new Will, the previous Will is invalid, which can mean that the new family miss out.

Undue influence

Wills must be made voluntarily and not under duress. If a claim of undue influence arises, it is up to the claimant to prove this. Physical and/or emotional coercion counts as undue influence and the legal precedent is that if the Will is obtained by means of that coercion.

Undue influence also means where a Will is obtained through fraud, where someone might have ‘poisoned’ the testator’s mind by lying about the character of a natural beneficiary, where they know or do not care that what they are telling the testator is untrue.

Codicils – signatories needed too

Wills should be updated or amended to reflect changes in circumstances or intentions. If those changes are substantial or numerous, then a new Will must be drawn up, but minor changes can be covered by a codicil. If you want to make a simple addition or an address change, a codicil will do, but it must be formally executed in the same way the will is.

If a testator makes later changes to their will be hand and these are not witnesses then this might present problems.

Mirror wills

Mirror Wills are made by couples where they leave their assets to each other. Such Wills need to include provisions for what happens to those assets when the second spouse dies, as otherwise, the Will is void, and the estate is distributed according to intestacy, whereas the couple might have had fixed ideas of what they wanted to happen to that estate when both were gone.


Please note: the article above is intended for information purposes only. It should not be used as legal advice. If you want to make or change a Will, we strongly recommend you consult a solicitor or other professional will writing practitioner.