Challenging the Validity of a Will
Our solicitors have years of experience advising on and supporting people through a range of Will disputes, including challenging a Will.
In order for a Will to be valid, it must meet certain conditions. If it fails to meet these conditions, the Will could be invalid.
Even if it is not invalid, you may have missed out on inheritance because of the issues, or you may be worried that your loved one’s final wishes are not being respected.
The nature of the dispute probably means that you are also in a dispute with close family members, which often means that tensions are at risk of spiralling out of control and landing everyone in court. Whatever the issue, it’s likely to be very stressful for you but it is very important to seek the right advice.
Exploring the Grounds for Contesting a Will
When it comes to challenging the validity of a Will, there are exist several grounds upon which one can base their claim.
These grounds encompass a range of scenarios, including:
Lack of Testamentary Capacity
A maker of a Will must possess sufficient mental capacity, often referred to as ‘testamentary capacity,’ to create a valid Will. This means understanding the nature and effects of making a Will, comprehending the assets they are distributing, recognising the individuals they are including or excluding, and meeting the legal criterion of being of sound mind. Proving a lack of testamentary capacity can be intricate, as the law upholds the importance of one’s freedom to make a Will.
Undue Influence
Sometimes, an individual crafting a Will can be unduly influenced, coerced or pressured by another to an extent that their free will is compromised. This is particularly prevalent among vulnerable or elderly individuals. Those closest to the testator, such as caregivers, friends, neighbours or even their own children, can exert undue influence. Establishing undue influence as grounds for a claim necessitates presenting strong evidence.
Fraud or Forgery
If a Will is proven to be a forgery or a subject of fraud, its validity may be challenged. For instance, if someone pretends to be the testator and alters the Will to benefit themselves, it constitutes fraud. Similarly, if a more recent Will is destroyed to reinstate a previous version, or if the testator is deceived into making a gift based on falsehoods (“fraudulent calumny”), this also constitutes fraud and, if proven to have taken place, it can render a Will invalid.
Lack of Due or Valid Execution
To be valid, a Will must adhere to the requirements outlined in the Wills Act 1837. This includes being in written form, signed by the testator or another person in their presence and direction, signed by witnesses, and they must have seen the testator sign, or heard the testator acknowledge his/her signature on the document. Even in the context of video Wills, where remote witnessing was permitted due to the pandemic, traditional execution standards must be maintained.
Lack of Knowledge and Approval
The testator must possess knowledge and approval of the Will’s contents. Mistakes in the preparation of the Will can lead to a lack of knowledge and approval. This might arise when the testator is unaware of the actual provisions of the Will they are signing.
Understanding these grounds is crucial for anyone considering contesting a Will. The process of challenging a Will is complex and requires strong legal expertise. If you believe you have valid grounds for contesting a Will, seeking professional advice is imperative to navigate the legal intricacies and ensure your rights are protected. Our experienced team can provide the guidance you need to pursue a claim and achieve the best possible outcome.
If you want to challenge a Will that you think was improperly executed or if you believe you were inadequately provided for, don’t hesitate to consult with our expert, Lewis Hastie.
