What it Means if Your Will is Invalid

image of elder couple reviewing their will by Mullins & Treacy LLP Solicitors Waterford

If your Will is invalid, then your estate will either be distributed according to the terms of your previous Will. Or, you will be considered to have died intestate, meaning your assets will be distributed according to the Succession Act 1965.

Why would a Will be invalid?

A Will is only valid if it meets all of the following criteria:

  • It is in writing
  • The testator (the person writing the Will) is at least 18 years old
  • The testator has the mental capacity to make a Will
  • The testator signs or marks the Will at the end of the document in the presence of two witnesses
  • The two witnesses sign the Will in the presence of the testator
  • The two witnesses do not stand to inherit under the Will (if they do, then the gift will fail, although the rest of the Will remains valid)

If you do not meet these requirements when making your Will, then it must be deemed invalid.

How do I know if a Will is invalid?

Often, the testator does not know that their Will is invalid. They live their life thinking that they have a Will in place, feeling confident that their wishes will be fulfilled after their passing. It is only after their death that problems are discovered and the Will is subsequently declared invalid.

In the majority of cases, this happens due to very simple mistakes regarding the execution of the Will. For example, it could be that the testator forgot to sign the document, or did not sign it in front of two impartial witnesses. This is truly heart-breaking for the loved ones left behind, as the Will must be disregarded.

A Will may also be declared invalid following a successful legal challenge. This typically happens when a beneficiary (or would-be beneficiary) contests the Will. They may argue that the testator did not have sufficient mental capacity when making the Will, and/or was placed under undue influence. If the court agrees, the Will must be set aside.

Make sure your Will is valid

If you are reading this and you have a Will, then you might be concerned that your Will could be declared invalid after your death. To prevent this from happening, you need to ensure that you have met all the requirements set out above. In particular, you must remember to sign the Will in front of two independent witnesses, and vice versa.

If you are worried that your Will could be challenged on the grounds of capacity or undue influence, then we recommend speaking to our solicitors. There are provisions you can put in place to prevent any such challenges from succeeding. For example, you can get a medical report, confirming that you are of sound mind.

It is also true that DIY Wills are much more likely to be declared invalid after the testator’s death. For this reason, it is better to ask a specialist solicitor to write your Will. A solicitor can ensure the Will is written in the correct format and is properly executed. He or she can also attest that you were of sound mind when drawing up the Will, should questions be raised.

What happens to my estate if my Will is invalid?

If your Will is declared invalid after your death, then one of two things will happen. Either, your old Will is reinstated. Or, if you do not have a previous Will (or the previous Will has been destroyed), then you are considered to have died intestate. This means that you have died without a valid Will in place.

If you are declared to have died intestate, your assets will be distributed according to the rules set out under the Succession Act. Any wishes that you expressed in your invalid Will cannot be taken into consideration. Effectively, it is as though the document never existed.

The Succession Act creates an order of succession amongst your remaining relatives. Your spouse or closest blood relations stand to receive the majority of (or all of) your estate. These relatives could be your children, grandchildren, parents, siblings, or nieces or nephews. If you do not have a living spouse or any living blood relations, your estate will go to the State.

Contact our Wills Solicitors Waterford

To ensure your Will is legally valid, we urge you to contact our Wills solicitors. We can help you draw up a new Will or amend your existing Will. Contact us for a no-obligation initial enquiry. We are client focused and results driven.

Call us on 051 391 488 or email reception@mullinstreacy.ie for a free no obligation enquiry. We are client focused and results driven.

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