Void vs Voidable Will UK (2026): The Legal Difference and What It Means for Your Estate

Not every defective will fails in the same way. A void will never had any legal existence and can be ignored; a voidable will is legally effective until a court sets it aside. The distinction determines how urgently you must act, whether probate can proceed, and whether partial invalidity can preserve the rest of the document.

The Core Distinction: Void vs Voidable

Concept	Effect	Key consequence
Void will	Nullity from the outset — never legally existed	No grant of probate should issue; if issued, it must be revoked
Voidable will	Valid and effective until set aside by a court	Probate can issue and estate can be administered — until a court order sets the will aside

In practice, courts sometimes use the terms loosely, and the classification of particular grounds (especially undue influence) continues to be debated. But the underlying principle is clear: a void will is never the testator’s genuine testamentary act; a voidable will is the testator’s act, but one that equity or the court is prepared to undo at the instance of an aggrieved party.

Grounds That Make a Will Void

1. Failure of Execution Formalities

A document that does not satisfy the requirements of s9 of the Wills Act 1837 is not a will at all. It is not merely defective — it never acquired any legal status. The four requirements are: in writing; signed by the testator (or by another in their presence and by their direction); the testator making or acknowledging the signature in the presence of two witnesses present at the same time; and both witnesses signing in the testator’s presence. Failure of any one element is fatal.

Because the document is void rather than voidable, the Probate Registry should not admit it to probate. If it has been admitted — perhaps because the failure was not apparent from affidavit evidence — a grant of probate can be revoked by the court at any time.

2. Forgery

A forged will is a complete nullity. The testator never made it; the signature is not theirs. A forged will is void, not voidable — it cannot be ratified or validated in any way. Forgery is also a criminal offence under the Forgery and Counterfeiting Act 1981.

3. Total Lack of Testamentary Capacity

A will made by a testator who entirely lacked capacity under the Banks v Goodfellow [1870] LR 5 QB 549 test — who did not understand the nature of making a will, the extent of their property, or the claims of those who might benefit — is void. The presumption of capacity arises from due execution and must be rebutted by the challenger; but once rebutted, the will is a nullity.

4. Undue Influence (Contested Classification)

English courts have traditionally described wills obtained by undue influence as voidable — they require a court order to be set aside. However, the better view in modern scholarship is that they are void: because undue influence overrode the testator’s free agency, the document was never truly their will at all. In practice the classification matters less than the urgency of the challenge. Whether void or voidable, an undue influence will cannot be given effect by a court that has found the necessary facts proved on the balance of probabilities.

Grounds That Make a Will Voidable

Lack of Knowledge and Approval

Where the testator did not know and approve the contents of the will — for example, they could not read and no one read it to them, or suspicious circumstances surround the execution — the will can be set aside. This ground does not deny that the testator signed; it asserts that they did not understand what they were signing. A duly executed will creates a presumption of knowledge and approval; that presumption can be rebutted. Until it is, the will is effective.

Fraud

Where the testator was deceived about the nature of the document (told it was a power of attorney) or about a beneficiary’s circumstances, the will can be set aside. Courts have used the language of both void and voidable in fraud cases; the critical point is that a will obtained by fraud will never be given effect once the fraud is proved.

Rectification

Under s20 of the Administration of Justice Act 1982, a court may rectify a will to give effect to the testator’s true intentions where the will fails to carry them out due to a clerical error or a failure to understand the testator’s instructions. A rectification application does not set the will aside; it corrects it. It must be made within six months of the grant of probate, with leave of the court required thereafter.

Partial Invalidity and Severance

A will need not fail entirely because one provision is bad. Courts have long exercised a power to sever invalid provisions and give effect to the remainder, provided the valid parts form a coherent and independent scheme. This applies where:

A specific gift was procured by undue influence but the rest of the will was freely made.
A condition attached to a gift is void as contrary to public policy, but the gift itself is valid.
A provision is illegal (e.g. a gift to a foreign enemy at law) but can be excised without destroying the rest.
An appointment in a will fails (e.g. an excessive appointment beyond the scope of a power) but the remainder of the will is unaffected.

The test for severance is whether the offending provision can be excised as if it had never been written without destroying the coherence of what remains. If the void provision was the cornerstone of the testator’s testamentary intentions — for instance, the entire residuary clause was procured by undue influence — severance may not be possible and the whole will may fail, leaving the estate to pass under an earlier will or intestacy.

Void conditions on gifts: where a testator leaves a gift subject to a condition and the condition is void, the outcome depends on whether the condition was precedent (the gift fails) or subsequent (the beneficiary takes free of the condition). Courts lean towards reading conditions as subsequent where ambiguous, preserving the gift.

Practical Steps When Challenging a Will

Enter a caveat immediately at the Probate Registry (form PA8A). This prevents probate being granted while you investigate. It costs £3 and buys six months.
Obtain the will. Once a death is registered, you may search the Probate Registry for any standing search (PA1S). A proved will is a public document available for £1.50.
Gather contemporaneous evidence. For capacity challenges: GP and hospital records around the date of execution; for undue influence: witness statements about isolation, dependency, or coercion. This evidence degrades rapidly after death.
Identify which ground applies. Void grounds can be raised at any time; for voidable grounds, delay creates practical (not always legal) difficulties. Rectification applications must be made within six months of the grant (with leave after).
Consider the costs risk. Contentious probate litigation is expensive. The general rule is costs follow the event, but courts have discretion — a meritless challenge can result in the challenger bearing all costs.

Frequently Asked Questions

What is the practical difference between a void and a voidable will?▼

A void will is a legal nullity — it never had any effect, no grant of probate should be made, and if probate has already been granted it can be revoked at any time. The estate passes as if no will existed (under an earlier valid will or intestacy). A voidable will, by contrast, is legally effective until a court formally sets it aside. Until that happens, the executor is entitled to obtain probate and administer the estate under the will's terms. The key practical difference is that with a void will no deadline strictly applies to challenging it (though delay may cause evidential difficulties); a voidable will should be challenged promptly, and a caveat should be entered at the Probate Registry without delay to halt any application for probate.

Which grounds make a will void rather than merely voidable?▼

In English law the grounds that render a will void include: (1) failure of execution formalities under the Wills Act 1837 s.9 — the will was never validly executed and is not a will at all; (2) forgery — a forged signature means the document was never the testator's will; (3) lack of testamentary capacity — if the testator entirely lacked capacity at the time of execution under the Banks v Goodfellow [1870] test, the purported will is a nullity. Some practitioners and courts also describe wills obtained by undue influence as void rather than voidable, on the basis that equity will not permit the guilty party to derive any benefit from their wrong. However, the classification of undue influence wills continues to be debated, and for practical purposes the distinction matters less than the need to bring the challenge before probate is completed.

What is partial invalidity and can a court sever bad provisions from a good will?▼

Yes. English courts have power to sever invalid, illegal, or contrary-to-public-policy provisions from a will and give effect to the remainder, provided the valid parts are coherent and represent the testator's intentions independently. The classic example is a specific gift procured by undue influence — that provision can be struck out while the rest of the will (the appointment of executors, residuary clause, other gifts) remains valid. However, if the invalid provision is so fundamental — for example, the residuary clause — that the remainder cannot stand alone, the whole will may fail. The test is whether, with the offending provision removed, the remaining will still represents a coherent and rational testamentary scheme.

What is a caveat and how does it protect someone who wants to challenge a will?▼

A caveat is an entry made at the Probate Registry (form PA8A, fee currently £3) that prevents a grant of probate or administration being issued without the caveator being notified. It lasts for six months and can be renewed. Anyone with a 'contrary interest' to the issue of a grant — a person who believes the will is invalid, or who has a prior claim under an earlier will or intestacy — can enter a caveat. If the executors under the will wish to proceed, they can issue a warning. The caveator then has eight days to enter an appearance (disputing the right to a grant) or the caveat lapses. Once an appearance is entered, the dispute must be resolved either by the parties reaching agreement or by a probate action in the High Court. Enter a caveat as the first step in any will challenge — never wait to see what happens.

Can a will be partly void because of an illegal condition or a condition contrary to public policy?▼

Yes. A condition attached to a gift in a will can be struck out as void if it is contrary to public policy or illegal, leaving the gift itself standing. Examples of void conditions include: conditions in restraint of marriage or requiring a beneficiary to divorce (void as contrary to public policy under Re Caborne [1943]); conditions requiring a beneficiary to change religion (sometimes void); conditions that are illegal (requiring the commission of a crime). Whether the void condition causes the gift to fail entirely, or merely the condition, depends on whether the condition was a condition precedent (beneficiary must satisfy it before taking — if void, the gift fails) or a condition subsequent (beneficiary takes the gift but must comply or forfeit — if the condition is void, the beneficiary takes the gift absolutely without condition).

If a will is declared void after the estate has been distributed, can I recover my inheritance?▼

Yes, in principle — but recovery depends on whether the assets can be traced and whether the recipients remain solvent. A beneficiary who received property under a void or voidable will is a constructive trustee of that property for the true beneficiaries (under the earlier valid will or intestacy). They must account for what they received and, if they have dissipated the assets, remain personally liable for the value. Executors who distributed in good faith without notice of a challenge may be entitled to a defence under the court's equitable jurisdiction, but they are not immune if they distributed after receiving notice of a caveat or challenge. The practical lesson is that delay in challenging a will increases the risk that assets will have been spent before the challenge succeeds.

This article is for general information only and does not constitute legal advice. The classification of wills as void or voidable depends on the specific facts and the applicable ground of invalidity. If you believe a will may be invalid or wish to challenge a grant of probate, consult a solicitor experienced in contentious probate immediately. Delay can be fatal to a challenge. WillSafe UK is not a firm of solicitors and serves England & Wales only. Last reviewed 19 May 2026.