There is a difference between making a claim against an estate (under the Inheritance (Provision for Family and Dependants) Act 1975) and challenging the validity of a will.
For more information
in respect of making a dependency claim, click here.
Here are the main ways that the validity of a will can be challenged.
Was the will executed correctly?
The execution of a will requires the document to be signed and witnessed correctly. This is according to the strict statutory rules.
In brief, the will must be signed by the testator (the person making the will) in the
presence of two witnesses. They must also sign the document.
Did the person have the mental capacity to make a will?
To successfully execute a will, a testator must have what is known as testamentary capacity.
There is a specific legal test to be applied which includes that the testator must know the consequences of making their will.
They should also know the contents of the estate they are leaving behind and consider any potential claims that could affect their estate.
If the testator has a mental illness that could affect their capacity, there may be sufficient doubt as to
whether they had testamentary capacity.
This shifts the burden of proving capacity onto those seeking to
rely on the will in question, and they must then prove that testamentary capacity was present.
Sometimes it is possible for a person to provide instructions for a will to their legal
professional whilst in possession of testamentary capacity and for that will to remain valid even if the person had lost capacity by the time they signed the document.
Did the person have knowledge of the contents of the will and approve it?
A testator must know and approve of the contents of the will they are signing.
Therefore, they must
understand what it contains and agree to it. This is often challenged in circumstances of homemade wills.
Perhaps where a beneficiary was involved in its preparation, and there is evidence that the testator was not truly aware of what was contained in the document (even though they did have testamentary
capacity, for example).
Was the person placed under undue influence to make the will?
Undue influence is a legal term for circumstances where vulnerable people have been pressurised or
coerced into making a will. That is, that they would not have executed if it were not for that serious pressure.
The burden of proving this lies with those seeking to set aside the will on this basis.
Steps to take when contesting a will
All of these will challenges are best resolved with expert legal advice.
It is preferable to attempt to resolve the issue before it reaches court proceedings.
If litigation in court is required, the question for the court will be to determine the validity of the document.
If the will is held to be invalid, then the last valid will of the testator takes effect (if there is one).
It is advisable to act quickly and to consider placing a Caveat at the Probate Registry to prevent a Grant of Probate being issued if you have legitimate concerns about the validity of a will.
This will prevent the
executors securing a Grant of Probate whilst your concerns can be addressed.
Using a solicitor to do
this is ensures that no mistakes are made and that all of the above validity issues can be evaluated.
Contact our Dispute Resolution Team now on 01772 799 600.
Article by Katy Rider