The Consequences Of Not Having A Valid Will

The need to write a Will cannot be stressed enough. Nonetheless over 50% of the UK population has not made a Will. During the pandemic, many law firms saw a surge in new instructions for Wills, but whether this has tipped the scales to lower the existing statistics is yet to be ascertained.

What happens if I do not make a Will?

If you do not make a Will, you will die intestate. This means that you will not have any control over what happens to your estate. Instead, the law dictates who will benefit from your estate from among your blood relatives. There is a hierarchy of beneficiaries who may benefit with one group of beneficiaries benefiting to the exclusion of all subsequent groups of beneficiaries on the hierarchical structure. For instance, if you die without leaving a valid Will, and are only survived by your parents, your siblings and your uncles and aunts, your parents, having the highest priority, will inherit your whole estate to the exclusion of your siblings and uncles and aunts. However, if you do not have any blood relative who are living at the date of your death, your estate will pass bona vacantia to the Government.

I have made a Will. Does this mean that I am safe from intestacy?

Writing your Will is a big step toward taking control of your affairs. However, it is not just a matter of writing a Will. The Will you write must be valid under current legislation. For your Will to be valid, it must be executed correctly. This means that it has be signed in the presence of two witnesses who are present at the same time. If your Will is signed by only one witness, the Will is invalid. Equally, if you have only one witness present when you sign your Will in the first instance and at a different time, you have a second witness sign the Will, the document is invalid even though on the face of it two witnesses have signed the Will. Both witnesses must be present at the time you sign the Will to ensure its validity. In both these instances, you will die intestate because your Will is not valid. Consequently, those you intend to benefit in your Will, especially if they do not have any blood ties to you, will receive nothing from your estate.

What else can make my Will invalid?

In addition to the improper execution of your Will, there are circumstances which can lead to your Will being invalidated.

• If you physically destroy your Will and do not write another one, you die without having a valid Will in place. This is similar to having no Will in the first instance, and your estate devolves under the rules of intestate.
• If you have a Will in place but decide to get married, your marriage will revoke your existing Will. It is imperative that you write a new Will after getting married. If you are about to write your Will and know that you intend to get married in the future, you can have your Will written in such a way that it remains valid after your marriage.

Can I remedy an intestacy?

Though by not writing a Will or by leaving an invalid Will you relinquish control over your estate, all is not necessarily lost. There is a possibility of varying the disposal of the estate, though this may not be quite so straightforward. A variation of a Will in effect re-writes the deceased’s Will, but various criteria need to be taken into account.

If you want to review your Will or you are dealing with an intestate estate and need help on how best to navigate this quagmire, please contact Sangeeta Moore for tailored and specialist legal advice and assistance on 020 7925 8080 or by email at [email protected].