There are only certain grounds on which a person can challenge the validity of a Will. It is not simply a case of showing that a Will is unfair or unkind – the Will must be shown to fail the relevant tests for validity.
The grounds on which a Will can be challenged are
- Lack of proper formalities
- Lack of capacity
- Want of knowledge and approval
- Undue influence
- Fraud
Lack of proper formalities
The law governing the making of a valid Will is set out in the Wills Act 1837. Although dating back many years, this legislation has stood the test of time and requires that a valid Will must comply with Section 9.
Section 9 of the Wills Act provides that a valid Will must be
- In writing
- Signed by the person making the Will or by someone else in their presence and at their direction
- The person making the Will must intend their signature to create a valid Will and
- Witnessed by two or more independent witnesses who are present at the same time, and each witness must sign the Will or acknowledge their signature in the presence of the testator.
It may be possible to show that these formalities have not been met if a copy of the Will file is made available or if Affidavits of Due Execution cannot be obtained from the witnesses.
If the formalities are not in place, then the Will is invalid.
Lack of capacity
To establish lack of testamentary capacity, it is necessary to show that at the time instructions for the Will were given and/or at the time the Will was executed, the person making the Will did not have the capacity to do so.
This test is a specific test that applies to the making of a Will and involves showing that the person making the Will did not know
- That they were making a Will
- The extent of their assets
- Who should be looked after in a Will or who might have a claim on assets
- This test for capacity is the test as set out in the case of Banks v Goodfellow [1870].
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.
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 the deceased had the requisite testamentary capacity.
Want 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.
Undue influence
Proving undue influence requires a party to show that it is more likely that a Will was produced as the result of pressure being brought to bear than any other reason. Recent case law has confirmed that in such cases the Court will look at all the circumstances and that having done so “the circumstances must be such that undue influence is more probable than any other hypothesis”.
Fraudulent or forged Wills
An allegation of fraud or forgery is very serious and should not be made lightly.
Instances of 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.
Expert Advice
Challenging the validity of a Will can be a complicated and emotionally draining thing to consider. If you are concerned about the validity of a Will then obtaining specialist legal advice will help to ensure that you concentrate on the most likely grounds for challenge and that you understand what evidence will be obtained to be successful.
Our teams are led by ACTAPS (Association of Contentious Trusts and Probate Specialist) lawyers who understand this area of the law and have experience in dealing with just these issues.
For more information, please contact a member of our Contentious Trust & Probate team here.
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.
