Challenging the validity of a Will
Posted on 21 June 2019 by Charlotte Dullaway
Disappointed beneficiaries often query whether they can contest a Will. Not being named within a Will is not sufficient grounds to challenge it, regardless of how frustrating it may be. A failure to include those closest to the testator (the person making the Will) could however be a sign of something amiss and can lead to an investigation into the validity of the Will.
For a Will to be valid certain conditions must be met. These can be broadly categorised as being the Capacity, Intention and Formality Requirements.
In order to make a Will the testator must be over the age of 18. There is a very narrow exception to this requirement for members of the armed forces on active military service and for mariners.
The testator must also have the necessary mental capacity to make a Will. This is referred to as testamentary capacity and the relevant test is set out in the case of Banks v Goodfellow . The test requires the testator to understand:-
1. The fact that they are making a Will and that it will only take effect after their death;
2. The extent of the property they own;
3. Any potential claims on the estate from those around them.
The test also requires the testator to be free of any delusion which impacts upon the terms of the Will.
Will challenges on the basis that the testator lacked capacity are fairly common. Where a Will does something unexpected or moves drastically away from the terms of previous Wills with no explanation people often query whether the testator understood what they were doing.
The starting point when considering a potential challenge on this basis is to obtain the file of the solicitor who prepared the Will. It is important to find out what checks, if any, were carried out to ensure the testator had the capacity to make the Will. If the solicitor’s notes do not shed light on the testator’s capacity, or if the Will was made at home, it is sensible to obtain copies of the testator’s medical records to establish whether there was any concern about their mental functioning around the time the Will was made. References to confusion, dementia, Alzheimer’s and, in certain circumstances, urinary tract infections, can all raise alarm bells for establishing capacity.
A testator must be acting of their own free will when making a Will. If they are forced into making a Will on specific terms by a third party, the Will can be challenged on the grounds of undue influence. If they choose to make a Will disinheriting a particular individual because a third party has poisoned their mind against that person, the Will may be open to challenge on the grounds of fraudulent calumny. The key point is that they must be making the Will they want without being swayed by outside forces.
It is also possible for a Will to be challenged if it appears the testator did not know or approve of the contents. This would be the case if they signed the wrong Will or signed a Will they had not read. Relevant factors to a Will challenge include whether there were suspicious circumstances surrounding its creation or, in certain circumstances, if the testator was blind, illiterate or the Will was signed by someone else on their behalf.
Section 9 Wills Act 1837 provides certain technical conditions which must be fulfilled for a Will to be valid. Although they would appear relatively straight forward it is not uncommon for Wills to fall foul of the rules, particularly if they are homemade. The law requires:-
1. The Will to be in writing, signed by the testator or by someone else in the testator’s presence and at their direction;
2. The testator to intend to bring the Will into force by signing it;
3. The testator to sign or acknowledge his signature in the presence of at least witnesses present at the same time;
4. Each witness to then attest and sign the Will or acknowledge their signature in the presence of the testator.
Failure to comply with any of these formalities will render the Will invalid.
Pursuing a claim
If you are considering a challenge you should act quickly as it can be more difficult to take action once a Grant of Representation has been issued. You may wish to enter a Caveat to prevent a Grant being taken out whilst you investigate your claim.
Our Dispute Resolution Team is here to help if you are considering a claim. If you would like to discuss your options contact Charlotte Dullaway on 01823 446230 or via email firstname.lastname@example.org.