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Challenging the validity of a Will

In a vast majority of cases on death an individual’s estate will usually be dealt with in accordance with his/her wishes, usually outlined in their will. There are however some circumstances where a family member or members may have grounds to suspect the validity of a will.

The most common scenario where such suspicion may arise is when a family member has been left out of a will completely, or has received a legacy far less than what was expected.

In such a situation, it is possible to challenge the validity of a will on one of the following grounds:

Improper execution

Under section 9 of the Wills Act 1837, in order for a will to be validly executed it must be in writing and signed by the testator (person making the will), the testator must have intended by his signature for the will to be valid, the testator’s signature must be witnessed by at least two witnesses at the same time. Each witness must then attest and sign the will or acknowledge his/her signature in the presence of the testator.

If either of these key elements is missing, the will can be found to be invalid

A lack of testamentary capacity

At the time of making the will, it is important that the testator has testamentary capacity. This means that the testator must:

  • understand the nature of his actions and the effects of this;
  • understand the extend of the property that is being disposed of;
  • be able to comprehend and appreciate the claims to which he/she ought to give effect;.
  • have no disorder of the mind that perverts his sense of right or prevents the exercise of his/her natural faculties in disposing of his property.

It is important to note that an individual will not be found to lack testamentary capacity simply due to age or because he is suffering from an illness such as dementia. The test is whether or not the testator is able to understand the provisions under the will and what effects this will have on those who benefitting/not benefitting under the will.

Coercion or undue influence

Undue influence is usually referring to pressure that has been exerted on the testator by a third party. The reference to ‘pressure’ has been described by the law as coercion.

Coercion itself can include a wide range of behaviour; some examples include physical or verbal bullying. Sometimes, it can simply involve speaking to the testator in such a way which encourages them to act in a particular way. The key element is that the testator’s own will power must be over turned.

Lack of knowledge or approval

A testator must have knowledge of and approve the contents of his will. There may be certain grounds that will give rise to suspicion that the testator did not know of, or approve the contents of his will.

Forgery and fraud

This can include scenarios where there is reason to believe that either the will has been forged, or the testators signature on the will has been forged.

If there are grounds to believe that a will is invalid it is important to act as soon as possible.

Where a will is found to be invalid, the executors can then either use an earlier valid will to distribute the property; or in the event that there is no earlier will, the estate will be distributed in accordance with the rules of intestacy.

If you would like any further information on contesting a will please email Geoffrey Ellis, Director or phone on 01527 912912

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