If your Will is valid, then your estate will be administered by your chosen Executors in accordance with your wishes.
However, if, for whatever reason, your Will is held to be invalid, then you will be considered to have died intestate (effectively without a will), meaning your assets will be distributed according to the Succession Act 1965.
A Will is only valid if it meets all of the following requirements:
- It is in writing
- The testator (the person making the Will) is at least 18 years old
- The testator has adequate mental capacity to make a Will
- The testator signs the Will in the presence of two witnesses
- The two witnesses then sign the Will in the presence of the testator
- The two witnesses do not benefit under the Will (if they do, their gift will fail, although the rest of the Will remains valid)
Failure to comply with these requirements will inevitably invalidate your will.
Give me some examples of why a will ends up invalid?
Typically, a testator may not realise his/her Will is invalid and so the problems get passed on to his family subsequent to his/her death when the Will is not upheld, and this can lead to disputes and costly litigation.
In many instances simple mistakes regarding the execution of the Will can render it invalid. For example, the testator did not sign it in front of two witnesses who were present with the testator at the same time.
A Will may also be challenged usually by family who either inherit or perhaps, more typically, fail to inherit under the Will. A claim can be made that the testator did not have adequate mental capacity when making the Will, or perhaps was put under pressure or under undue influence by some family members. After a court has heard evidence from all sides it can invalidate the Will in certain circumstances.
How can I avoid all that?
Make sure to give your solicitors full instructions and comply with all his / her requirements as to properly making your will. If you feel some of your family may contest the Will and allege you lacked capacity to execute it properly or were pressured by one family member to favour them, then arrange to see your GP and have him certify that you are fully compos mentis on the date of signing.
Avoid DIY Wills which result in too many problems afterwards arising from poor drafting and lack of clarity. Solicitors charge a modest amount for doing most family Wills and they can also confirm that you were of sound mind when signing the Will, should any issues arise subsequently.
What happens to my estate if my Will is invalid?
If your Will is declared invalid, you are deemed to have died intestate and your assets will be distributed under the provisions of the Succession Act 1965.
The Act creates an order or ranking 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 surviving spouse or any living blood relations, your estate will go to the State. To avoid such an eventuality – you should arrange and execute a valid Will with your family solicitor as soon as possible; it can always be updated or revised again at a later date.
The contents of these pages are provided as an information guide only. While every effort is made in preparing material for publication no responsibility is accepted by or on behalf of McCormack Solicitors for any errors, omissions or misleading statements on these pages or any site to which these pages connect.