Writing a Will is the most sensible way to ensure that your wishes are followed after your death. The vast majority of Wills go unchallenged and families are able to grieve the loss of a loved one and administer their Estate.
In some cases, however, a Will – or the lack of a Will – creates grounds for a dispute.
There are limited grounds for disputing a Will – if a challenge does not fall within a permitted ground, the challenge will fail. The grounds on which you can take issue with a Will are as follows:
- 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 into doing so,
- the person who made the Will did not know of/approve its content.
Wills can also be challenged if there is an allegation that a Will is a forgery or a fraudulent document or if the drafting or construction of a Will is unclear.
The Will was not properly executed
To be valid a Will must comply with the requirements of the Wills Act 1837. These criteria were slightly relaxed during the Covid-19 pandemic to acknowledge difficulties in having witnesses in the same location as the person signing the Will. If one or more of these requirements is not met, a Will may be declared invalid.
The requirements include:-
- The person making the Will must be over 18
- The Will must be in writing,
- The Will must be signed by the person making it and witnessed by at least two people over the age of 18 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. Witnesses might see the Will being signed remotely eg. By Facetime or Zoom but must have a clear view of the Will being signed.
Care should be taken to ensure that no witness benefits from the Will itself as the gift to them will fail and a partial intestacy will arise.
The starting presumption is that a Will is valid unless there is evidence to show that is not the case. The burden of proof falls on the person seeking to show that a Will is not valid.
Lack of testamentary capacity
For a Will to be valid, the person making it must know and understand what they are doing. The testamentary capacity of the person making the Will can be called into question after their death and it is then for the person bringing the challenge to prove that the Deceased lacked the requisite understanding.
The mere fact that a person was old or suffered from early forms of dementia (for example) does not automatically mean they lacked the testamentary capacity to make a valid Will. Equally, a person who appeared to have capacity may in fact have been affected by particular problems such as depression or medical treatment.
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. A “retrospective” capacity report can help to establish whether or not the Deceased had the requisite testamentary capacity.
Undue Influence
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.
Once someone has died it can be very difficult to show that they were influenced into making their Will in a certain way. The burden is – again – on the person bringing the challenge to show that undue influence or coercion are behind the terms of the Will.
Lack of knowledge and approval
A Will is only valid if the person making it knows that they are making a Will and understands the content of that.
There are situations where the person making the Will did not know about the whole document or did not intend the document to be a Will. If that can be proven, a Will can be set aside.
Fraudulent or forged Wills
An allegation of fraud or forgery is very serious and should not be made lightly.
Instances or fraud or forgery do occur in Wills and where that suspicion is aroused enquiries should be made. If there is a suspicion that the signature on a Will is not that of the person who supposedly made it then it may be necessary to instruct a handwriting expert to examine the Will.
A Will can be declared invalid if forgery or fraud can be shown to have played a part in the making of the Will. Where a Will can be proven to have been forged, it can be declared invalid.
What happens if a challenge to a Will is successful?
Before making the decision to challenge a Will it is important to work out what happens if you succeed. If a Will is declared invalid for any reason then the Estate will be administered in accordance with the most recent previous valid Will or the rules of Intestacy (if there is no previous valid Will).
A challenge to the validity of a Will may not be worthwhile if setting it aside results in no benefit to you.
Rectification and clarification of Wills
Sometimes a Will does not accurately or correctly reflect the wishes of the Deceased. In such cases it is sometimes possible to correct an error if it can be shown with certainty what the Will should have said. This can happen where, for example, it can be shown that the person who drafted the Will did not understand the wishes of the deceased.
In other cases the wording of a Will may be open to interpretation. Where more than one meaning can be read into the Will, it may be necessary to bring a claim to seek clarification of how the Will should be interpreted. This is know as a “construction” claim.
For more information, please contact a member of our Contentious Trust & Probate team.
The information on this site about legal matters is provided as a general guide only. Although we try to ensure that all of the information on this site is accurate and up to date, this cannot be guaranteed. The information on this site should not be relied upon or construed as constituting legal advice and Howes Percival LLP disclaims liability in relation to its use. You should seek appropriate legal advice before taking or refraining from taking any action.
