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Grounds for challenging a Will

View profile for Jordan Davies
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The death of a loved one can be a difficult time. Family members are often left to arrange funerals and to ensure that the deceased’s affairs are put in order. It is important to family members to fulfil the deceased’s wishes. On occasion, 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 all the more testing.

If a party was concerned that the Will did not reflect the deceased’s wishes and intentions, they may wish to bring a claim to challenge the validity of the Will.

If the validity of a Will is successfully challenged, the estate is distributed in line with the terms of a former Will. If the deceased did not execute a Will during their lifetime, 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.

Is the Will valid?

When seeking to challenge the validity of a Will, the first consideration must be whether the Will has been properly executed. This can be considered 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.

In order 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, there is a presumption that the Will is valid.

Grounds for challenging a Will

If a Will is concluded to be valid, in order to challenge its validity, a party must look to challenge the will under one of the following grounds.

1. Testamentary capacity

In order to execute a valid Will, the testator must, at the time of providing instruction to their drafting solicitor and at the time of execution, have the requisite testamentary capacity.

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,
  • Are able to 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, at the time of instruction and/or execution of the Will, they are unable to make decisions for themselves due to an impairment or disturbance in their cognitive function.

In claims challenging the validity of the Will on the basis of testamentary capacity, it is often recommended to obtain the deceased’s medical records, so that they can be reviewed to consider whether there were any issues relating to mental capacity at the relevant period.

2. Lack of understanding and approval

When looking to contest that the testator had a firm understanding of their Will, and approved of its contents, 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 requisite knowledge and approval of their Will, if they have any special requirements or needs. These can include things such as impaired hearing, visual impairment, speech impediments, low levels of literacy, health conditions or lacking legal knowledge when executing a complex or unusual Will.

3. Undue influence

In some instances, a party may wish to challenge the validity of a Will as they believe that the testator’s decision making process has been influenced by a third party. A 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. This can include being coerced into making a Will that the testator did not want to make at all, or instead a case of the testator being made to include gifts/parties that they would not have done under their own volition. 

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.

4. Forgery and fraud

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 on the basis of 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 rectification due to a clerical error resulting in the terms of the Will failing to accurately reflect the testator’s intentions.

The need for rectification 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. Should you wish to speak with us about your own matter, please get in touch with us on 0161 696 6178 and we will be happy to speak with you.