The loss of a loved one is a difficult time and having doubt whether their Will truly reflects their wishes can make an emotional time even more difficult. Disputes between family members where a Will is contested are unfortunately becoming more common. Our Contentious Probate Partner, Nazia Nawaz highlights below, the main reasons for challenging a Will:
Lack of due execution
For a Will to be valid it must be duly executed in accordance with the requirements set out in s.9 of the Wills Act 1837. Certain formalities set out below must be complied with. These requirements that:
- the Will must be in writing and signed by the testator, or by some other person in his presence and by his direction; and
- it appears that the testator intended by his signature to give effect to the will; and
- the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time.
- Each witness either:
- attests and signs the will; or
- acknowledges his signature, in the presence of the testator (but not normally in the presence of any other witnesses), but no form of attestation shall be necessary.
Lack of testamentary capacity
This is where a person’s mental ability to make a Will or alter an existing valid Will, is challenged. If a person lacks testamentary capacity at the time of making their Will then it will be invalid. Assessment of a person’s testamentary will depends on the facts in individual cases and is determined solely by a person’s ‘state of mind’. When executing a valid Will, a person must be able to understand and make decisions about the Will they are making and its effects and consequences. Medical evidence is usually required to assist in establishing capacity retrospectively.
Lack knowledge and approval of the terms of a Will
There may be circumstances such as physical conditions of not being able to write, or where the person making the will was deaf or blind at the time, which can raise concern. It must be established whether that person had the required knowledge to understand the content of their Will and whether they approved the content, by considering whether they understood a) what was in the Will when they signed it, and b) what its effect would be.
Undue influence
This is a difficult ground to prove in will validity cases and one must prove that the Will was the product of wrongdoing rather than that of the persons true intention and wishes. For instance, a will can be challenged where there is evidence that the person was coerced or pressurised by someone into making their Will usually to benefit that person. Undue influence can take various forms such as badgering, bullying, intimidating or threatening someone to make a will in certain terms. It also be in more subtle forms such as excessive persuasion, befriending a vulnerable person or simply by tugging on the heart strings of a person in order to convince them to make a will in certain terms. Unfortunately these types of behaviours are usually carried out secretly and therefore having any form of evidence is highly unlikely and so lack of evidence should not discourage anyone from taking legal advice on their circumstances if they suspect that a will was created under undue influence.
Often wills are challenged on more than one of these grounds.
If you have any enquiries or require any advice on challenging a Will then contact call us on 01484 558058 or email us at Nazia.Nawaz@Ramsdens.co.uk.