Q&A - Father did not appoint executors or get Will correctly witnessed. Is it invalid?

19/11/2016

Q: After my father passed away recently we found his Will amongst his paperwork. In it he leaves the bulk of his estate in varying ways to me and my brother, as our step-mother died a few years ago, plus some bequests to extended family members. The problem is that he doesn’t appear to have appointed any executors and the Will only bears the signature of one witness. My step-brother says the Will is only valid if it has been witnessed and signed by two people. Is this true and if it is, what are the implications of it being invalid?

A: Unfortunately a Will does need to be signed by two witnesses so it does mean that your father’s Will is invalid and he effectively died intestate. The fact that there are no executors is less of a problem as you and your brother, as his only children, have an equal right to administer his estate.

When someone dies without leaving a valid Will, their property must be distributed according to the rules of intestacy. The intestacy rules for England and Wales state that when someone dies intestate with no surviving spouse or civil partner, but with surviving children or other descendants, the whole estate passes to the children in equal shares. In cases where a son or daughter has died, their share of the inheritance will be divided among any children they had.
In the case of your father’s Will, you and your brother will therefore each inherit an equal share. Further, under intestacy rules you are the only persons who can inherit, so if your father had step-children they will inherit nothing.

This scenario highlights the importance of having a Will drawn up properly by a lawyer, and why home-made Wills should never be made.

Victoria Wilson

Victoria Wilson

Partner

A Partner and Part of our Probate, Wills, Trusts and Tax team in Oswestry