Is a will legally binding?
As ever, there are exceptions! But let’s start with the general principle.
- is a legally binding document;
- is created by you - the testator (or on your behalf); and
- determines what is to happen to your property, assets and other possessions after your death.
If it is in correct form, then your executors are legally bound to administer your estate in accordance with the terms of your will.
So your executors will have to:
- distribute the specific legacies left in your will, whether of money, property, other assets or personal possessions;
- share your residuary estate among the people who are entitled to it; and
- give effect to your funeral wishes.
When a will is not binding
Sometimes, a will cannot be carried out literally. For example:
- particular assets mentioned in your will no longer exist, or have previously been disposed of by you;
- there is not enough in the estate to pay out all the specific legacies (see our page on Failure of gifts);
- after the specific legacies are distributed, there is nothing left to form the residuary estate;
- your appointment of a guardian of minor children is not accepted by someone else who has parental responsibility for them;
- the will has not been validly made, perhaps because of a defect to do with the signature or the witnessing;
- the will does not make enough provision for family or dependants (for more information, see Can you disinherit family and dependants?);
- the will does not dispose of the whole estate (see Partial intestacy);
- it contains illegal or impossible conditions (see our page on Conditions in a will); and
- your funeral wishes turn out to be unreasonable or disproportionate in relation to the size of the estate.
When terms of a will do not have to be followed
Sometimes, even though your will is valid, and all its provisions could be implemented, there may be another stumbling block – the people mentioned in the will may have changed their minds! Perhaps:
- your executors no longer wish to be executors (see Appointing an executor – is it binding?); or
- the people you appointed as guardians of your children no longer wish to be their guardians (see Is appointing a guardian under a will final?)
Obviously, a person cannot be forced to act as an executor, or to be a guardian. Perhaps their circumstances have changed since the will was made, and of course in the case of a guardian, the children in question may have reached adulthood.
You should check regularly that the people who may have a role to play after your death are still willing and able to do so. This is a sensible thing to do so especially if they:
- have children;
- move away;
- fall ill or become disabled; or
- become a carer for someone else.
When a person does not want their inheritance
It may happen that a person named in your will does not wish to accept the legacy you intended for them.
- They may wish to receive nothing at all from the will; in which case they can disclaim the gift.
- If they have received more than one gift, they may not wish to receive all the gifts; they can then make a disclaimer of one or more of the gifts. For more information, see our page What is a disclaimer and how do you disclaim a gift?
- They may wish their share, or part of it, to go to some other specific person; they can do this by a variation (see our page Can a will be changed after death?).
- If the gift is a sum of money, they might prefer to receive property or assets instead of all or part of that sum; they can do this by an appropriation. See our page on Appropriation of property in place of another legacy for more information.
Select an article:
Can a will be changed after death?
The effect of a will can sometimes be changed by a disclaimer or a variation
Appointing an executor - is it binding?
Even once an executor is appointed they can still stand down or be unable to act
Is appointing a guardian under a will final?
Appointing guardians for your children in your will may not be the final word
Appropriation of property in place of another legacy
Appropriation of property is exchanging a legacy under a will for a different asset
What is a disclaimer and how do you disclaim a gift?
A disclaimer of a gift is the refusal of a gift under the will by a beneficiary
Partial intestacy occurs when part of your estate can’t be distributed according to the will
Can you disinherit family and dependants?
The law provides remedies for family and dependants who are disinherited