There are a number of grounds that can be relied upon to challenge the terms of a Will.
When considering a challenge it is important to check whether the basis for your claim falls within one of the permitted grounds:-
- the Will was not properly executed,
- the person who made the Will lacked the requisite mental capacity at the time the Will was made,
- the person who made the Will was unduly influenced in to doing so,
- the person who made the Will did not know of/approve its content.
Wills can also be challenged if there is an issue with the drafting or construction of a Will so that its meaning is unclear or if it is suggested that a Will is a forgery or a fraudulent document.
The Will was not properly executed
To be valid a Will must comply with certain criteria. If one or more of these requirements is not met, it can be declared invalid.
The requirements include:-
- The Will must be in writing,
- The Will must be signed by the person making it and witnessed by at least two people who are present at the same time,
- It must appear that the person who signed the Will did so intending the document to take effect as a Will,
- The witnesses to the Will must sign to say that they have seen the person making the Will sign it.
There are also strict rules about who can and cannot witness a Will:-
- The Will must be in writing and signed by the testator or signed by someone else in their presence, who has been directed to do so by the testator.
- It must appear that the testator intended by their signature to give effect to the will.
- The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time.
- Each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness.
- The legal presumption is that a will has been validly executed unless there is evidence to the contrary such as doubts over any of the above factors.
It is for the person arguing that a Will is not valid to prove their case – a Will is presumed valid unless (and until) proven otherwise.
Lack of testamentary capacity
Lack of testamentary capacity is something that has to be proven by the person raising the challenge. It is entirely possible for someone to be old or suffering from early forms of dementia but still have the capacity to make a Will.
For a Will to be valid the person making the Will must:-
- Understand the nature and extent of their Estate,
- Understand that they are making a Will and the effect of that document,
- Understand who they are including in their Will (and who they are leaving out) and what the consequences of that will be,
- Not be suffering from any “disorder of the mind.”
Testamentary capacity is a very individual thing and medical evidence will often be required to identify whether a Will can be challenged successfully on this ground.
If someone is pressured or coerced into drafting their Will in a particular way this will be grounds to say that the document is invalid.
Proving undue influence can be very difficult, particularly since the person who was influenced is usually no longer able to tell us what has happened.
The evidence required to show undue influence or coercion has to be of a very high standard – there is no automatic presumption that someone has unduly influenced the maker of the Will.
Lack of knowledge and approval
To make a valid Will a person has to know that they are making a Will and be fully aware of the content of it. To challenge a Will on this ground successfully you have to show that the person who made the Will did not know what they were doing or was not fully aware of the provisions of the Will.
Fraudulent or forged Wills
If there is a suspicion that the signature on a Will is not that of the person who supposedly made it, it may be forged. Where a Will can be proven to have been forged, it can be declared invalid.
If there is a challenge to a Will on the grounds that a fraud has led the person making the Will to draft it in the way that they have – because, for example, they have been misled about something – the Will can also be declared invalid.
If a challenge is successful the last valid Will is the one that will apply. If there was no previous Will the Intestacy Rules will govern what happens to the Estate.
Recification and construction of Wills
If a Will does not accurately reflect the person’s wishes because of an error in it, it can be possible to correct that error to give effect to the wishes of the person who has died. This can also be achieved in circumstances where it can be shown that the person who drafted the Will did not properly understand the wishes of the deceased.
In other cases, the wording of a Will can be open to interpretation and may need to be clarified. This requires the construction of the Will to be considered so that the deceased’s actual wishes can be brought into effect.