The death of a loved one is a very challenging time. Family members are often left to arrange funerals and to ensure that the deceased’s affairs are put in order under a great deal of mental strain, and it is important to family members to fulfil the deceased’s wishes. There are times, however, when friends and relatives may be concerned that their late relative’s Will does not reflect the deceased’s true wishes, making an already difficult period more challenging.
If a friend or relative was concerned that the Will did not reflect the deceased’s wishes and intentions, they might want to bring a claim to challenge the validity of the Will. If the Will is successfully challenged, then the estate is distributed in line with the terms of the previous Will, but if there is no former Will then the estate is distributed in line with the rules of intestacy.
It is important for anyone challenging a Will to consider whether a successful challenge would benefit them. If a successful challenge did not stand to improve upon a person’s current position, they likely should not pursue the claim.
When seeking to challenge the validity of a will, you must weigh
up whether the Will has been properly executed. This can be achieved by
reviewing a copy of the Will and potentially contacting the witnesses, to
ensure they fulfilled their roles as witnesses in the proper manner.
The requirements of a valid Will are detailed in Section 9 of the
Wills Act 1937.
For a Will to be valid, it must be:
·
In writing
·
Signed by the testator
·
The testator must intend to give effect to the
Will by signing the document
·
The testator’s signature must be signed and
acknowledged in the presence of two witnesses; and
·
The two witnesses must also sign the Will at
the same time.
If it is concluded that the Will was been properly executed, then
it is usually presumed that the Will is valid.
What are the grounds for challenging a Will?
If a Will is concluded to be valid, to challenge its validity, a
party must look to challenge the Will under one of the following grounds:
1. Testamentary capacity
To execute a valid Will, the testator
must have the requisite testamentary capacity at the time of providing
instruction to their drafting solicitor and at the time of execution.
For Wills made prior to 1st April
2007, the test for testamentary capacity comes from Banks v Goodfellow [1870]
LR 5 QB 549. This case confirmed that a testator will have capacity if they:
·
Understand the nature of making a Will and its
effect;
·
Understand the extent of their property;
·
Can comprehend and appreciate the claims to
which they ought to give effect; and
·
Have no disorder of the mind which ‘shall
poison their affections, pervert their sense of right or their Will in disposing
of their property’.
For Wills made after 1st April 2007,
capacity is governed by the Mental Capacity Act 2005. This Act presumes that an
individual has capacity and will only lack capacity if they are unable to make
decisions for themselves due to an impairment or disturbance in their cognitive
function at the time of instruction and/or execution of the Will.
In claims challenging the validity of
the Will based on testamentary capacity, it is often recommended to obtain the
deceased’s medical records, so that they can be reviewed to judge whether there
were any issues relating to mental capacity at the time the Will was drawn up.
2. Lack of understanding and approval
When wanting to contest that the
testator had a firm understanding of their Will, it is the duty of the party upholding
the Will to demonstrate that the testator fully understood the terms of the
Will, its meaning and approved its contents.
Additional care must be taken to
ensure the testator had the necessary knowledge and approval of their Will, if
they have any special requirements or needs. These can include things such as
visual impairment, speech impediments, impaired hearing, low levels of
literacy, some chronic health conditions or even lacking the required legal
knowledge when executing a complex or unusual Will.
3. Undue influence
In some instances, a friend or
relative may wish to challenge the validity of a Will as they believe that the
testator’s decision-making process has been influenced by someone. The
challenging party must prove that the testator acted against their own will and
that they were coerced into making a Will that they did not wish to make.
It is the duty of the party
challenging the Will to prove that the testator was subjected to undue influence
and that such influence impacted upon the testators’ decisions in drafting the
Will.
The evidential burden for undue
influence is high, in light of it being the equivalent to fraud.
Undue influence is notoriously
difficult to prove and so the challenging party would need to be able to
provide quality evidence in support of their claim.
On occasion, a party may have reason
to suspect that a Will has been forged. In such instances, it may be
appropriate to instruct a handwriting expert to consider the testator’s
signature.
Unless an expert can definitively
confirm that they consider the signature, and other possible handwriting, to be
forged, the court are unlikely to consider allowing the claim.
A Will being challenged based on fraud
is possible but less common. Such instances may include a person pretending to
be the testator and amending or executing a Will in this person’s name.
Claims of forgery and fraud are not
particularly common and parties will often seek to rely on other grounds to
challenge a Will.
5. Rectification
From time to time, a Will may require correction
due to a clerical error resulting in the terms of the Will failing to
accurately reflect the testator’s intentions.
The need for amendment may also arise
if the drafting solicitor fails to understand the testator’s true intentions,
and therefore drafts the terms of the Will incorrectly.
In either of the above instances, the
court will rectify the Will and give effect to the testator’s true intentions.
Such application to the court must be made within six months of probate being
granted.
If you believe that you have grounds to challenge the validity of a Will, you must seek advice at the earliest opportunity. You can find a lawyer to help you in this matter on our site simply by searching using the term “probate” to find a lawyer who specialises in probate law.
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