A Guide to Contesting a Will

When someone dies, disputes can sometimes arise about whether their Will is valid or accurately reflects their wishes. There are a number of legal grounds on which a Will can be challenged, but it is important to understand that not every disagreement with the contents of a Will will result in a successful claim.

This guide explains the most common grounds for challenging a Will and answers some frequently asked questions.

Grounds for Challenging a Will

A Will may be challenged on one or more of the following grounds:

• The Will was not properly executed.
• The person making the Will lacked testamentary capacity.
• The person making the Will was subject to undue influence.
• The person making the Will did not know or approve the contents of the Will.
• The Will is fraudulent or forged.
• There are drafting errors or ambiguities requiring rectification or construction.

1. The Will Was Not Properly Executed

For a Will to be legally valid, it must comply with specific legal requirements. If these requirements are not met, the Will may be declared invalid.

Legal Requirements for a Valid Will

A valid Will must:

• Be in writing.
• Be signed by the person making the Will (the testator), or by another person in their presence and at their direction.
• Show that the testator intended their signature to give effect to the Will.
• Be signed or acknowledged by the testator in the presence of at least two witnesses who are present at the same time.
• Be signed by each witness in the presence of the testator.

There are also strict rules regarding who can act as a witness.

Burden of Proof

The law generally presumes that a Will has been validly executed. Anyone challenging the validity of the Will must provide evidence showing that one or more of the legal requirements were not satisfied.

2. Lack of Testamentary Capacity

A person must have sufficient mental capacity when making a Will.

Having advanced age, memory problems, or even early-stage dementia does not automatically mean that someone lacks testamentary capacity.

To Have Testamentary Capacity, the Testator Must:

• Understand the nature and extent of their estate.
• Understand that they are making a Will and the effect of doing so.
• Understand who might reasonably expect to benefit from their estate.
• Appreciate who they are including or excluding from the Will and the consequences of those decisions.
• Not be suffering from a disorder of the mind that affects their decision-making.

Medical evidence is often required when a Will is challenged on the grounds of lack of capacity.

3. Undue Influence

A Will may be invalid if the testator was pressured, coerced, or improperly influenced into making it in a particular way.

Undue influence is one of the most difficult grounds to prove because:

• The person who made the Will is no longer able to explain what happened.
• Evidence must demonstrate actual coercion rather than mere persuasion or influence.
• There is no automatic presumption that undue influence occurred.

Courts require strong and compelling evidence before setting aside a Will on this basis.

4. Lack of Knowledge and Approval

For a Will to be valid, the testator must understand and approve its contents.

A challenge may arise where there is evidence suggesting that the testator:

• Did not know they were signing a Will.
• Did not understand the contents of the document.
• Was unaware of significant provisions within the Will.

The person challenging the Will must demonstrate that the testator lacked sufficient knowledge and approval of its contents.

5. Fraudulent or Forged Wills

A Will may be declared invalid if it is shown to be fraudulent or forged.

Examples include:

• A signature that is not genuinely that of the testator.
• A Will that has been altered without authority.
• A testator being deliberately misled into making a Will based on false information.

Where fraud or forgery is proven, the Will can be set aside by the court.

What Happens if a Will Is Declared Invalid?

If a challenge succeeds:

• The most recent valid Will usually takes effect.
• If no valid earlier Will exists, the estate will be distributed according to the Intestacy Rules.

6. Rectification and Construction of Wills

Not all disputes concern whether a Will is valid. Sometimes the issue is that the Will does not accurately reflect the deceased’s wishes or contains unclear wording.

Rectification

A court may correct a Will where:

• A clerical error has been made.
• The person drafting the Will failed to properly understand or record the testator’s instructions.

Construction

Where wording is ambiguous or open to more than one interpretation, the court may determine the correct meaning of the Will to ensure the deceased’s intentions are carried out.

Frequently Asked Questions (FAQs)