Home / Making a Will / Legality of a Will / How legally binding is a Will?

For a will to be legally binding it must be a valid will. For more information about what constitutes a legally binding will read our article called “requirements for a legally binding will”.

In England and Wales, as a general rule, a “testator” (the person whose will it is) is free to leave his or her property and assets to who ever he or she wishes. However, this is not always the case.

Even valid wills can be contested in certain circumstances if a person has not been adequately provided for in the will. Also certain types of provisions contained in a will may not be legally binding. This article considers the main types of problem which could occur.

Beneficiaries

Inadequate provision made in the will

If a will fails to make “reasonable financial provision” for certain classes of people then the Court has the power, under the Inheritance (Provision for Family and Dependants) Act 1975, to ensure that they are provided for. For more information about the Inheritance (Provision for Family and Dependants Act 1975 read our article called “contesting a will”.

Conditions imposed on beneficiaries

When a testator leaves property or assets to a beneficiary he or she may impose a condition, for example, if the testator does not want one of his or her beneficiaries to inherit the estate until they reach a certain age. Any conditions imposed must be reasonable and not contrary to public policy. If a condition is unreasonable or is contrary to public policy then a Court may set aside any such bequest.

Gifts made to witnesses

A will should be witnessed by two independent people. A beneficiary or the spouse or civil partner of a beneficiary is not regarded as being independent. If a beneficiary or the spouse or civil partner of a beneficiary witnesses the will then they will not inherit the gift set out in the will.

Executors, trustees and guardians

No one can be forced to take on the role of an executor, trustee or guardian. For this reason if a person is appointed under a will to take on one of these roles they will not be legally bound to accept the appointment. It is, therefore, always a good idea to check whether a person is willing and able to take on such a role before appointing them in your will.

Property

Jointly owned property

Property owned jointly or money held in a joint bank account will normally pass automatically to the other joint owners irrespective of what a will says.

Insurance policies and pensions

The proceeds of an insurance policy or a pension will often pass in accordance with the terms of the insurance policy or the rules of the pension scheme. If that is the case any provision to the contrary contained in a will will not be legally binding.

Overseas property

The inheritance laws of other countries are often very different to the inheritance laws of England and Wales.

A provision contained in an English will relating to overseas property may not be legally binding.

Revocation of a will

As a general rule, a will is revoked upon the marriage of the testator or if the testator enters into a civil partnership. A will can also be revoked by a testator executing a later will or codicil or by making a written declaration declaring his or her intention to revoke the will. A will can also be revoked by a testator intentionally destroying the will. Once a will has been revoked it will no longer be legally binding.

Divorce or dissolution of a civil partnership does not revoke a will. However, following a divorce or dissolution of a civil partnership certain clauses contained in a will will no longer be legally binding.

Funeral and burial arrangements

In your will you can make known any wishes you may have in relation to your funeral or the disposal of your body. Any such provisions will not, however, be legally binding although they are usually adhered to.