Losing someone close is difficult. There are a myriad of emotions you may go through and practical issues to sort out. This already difficult time may be compounded if you find your loved one’s Will does not say what you expect it to. You may be concerned about the circumstances surrounding the Will. For example you may believe it does not reflect the person’s wishes. Or feel that pressure was put on them to leave their estate to a particular person. Or that they did not understand/have the mental capacity to make a Will. If you find yourself in this position, there may be grounds in challenging the validity of a Will.
If you believe the Will is valid but have been left out of the Will or left with inadequate financial provision, please see our separate blog on Inheritance Act Claims.
Grounds for challenging the validity of a Will
Some of the more common grounds for challenging a Will are set out below. Please note the person making the Will is called ‘the Testator’
If the Testator lacked mental capacity to make their Will then the Will may be declared invalid and set aside.
In broad terms, in order to have the requisite mental capacity to make a Will, the Testator must (both at the time the Will was made and when it is signed) be able to:
- Understand the nature of the act of making a Will. This involves understanding that they will die and that when they do, the Will comes into operation. Further, that they can change or revoke the Will before their death but only if they have the mental capacity to do so.
- Understand the effects of making a Will. This includes the appointment of Executors, deciding who receives what, whether the gifts are outright or limited or conditional in some way. The consequences of a depleted estate, that a beneficiary might predecease them, the effect on any previous Will. Also the reasonably foreseeable consequences of making or not making a Will at this time.
- Understand the extent of the property they are disposing of. This includes the amount of property, money, or investments they hold (although not necessarily the exact amount). As well as the fact that their assets may change during their lifetime.
- Comprehend and appreciate the claims of all the people to which they should have regard to. Such as their obligations to their relatives (i.e. did they understand the consequences of including or excluding someone from their Will). This involves having the ability to distinguish between individuals who may have some claim on their estate. Reaching some kind of moral judgment in relation to them. Beneficiaries may be left out because they are otherwise well provided for. Or because of personal reasons or preferences. In this regard the rationality of eccentricity of a Will raises no adverse inference. Providing the Testator appreciated their moral obligation to anyone who it could reasonably be said they owed a duty.
The Testator must not have been subject to ‘any disorder of the mind’ which influenced their Will and the disposal of their property in a way they would not have done had they been of sound mind.
Expert medical evidence is normally required to establish whether the Testator had the requisite mental capacity to make a Will
Knowledge and approval
In order for a Will to be valid, the Testator must have known and approved of the contents of their Will at the time they executed it. I.e. the Testator must have known that they were signing a Will and approved of its contents.
Generally, if the Testator had the requisite testamentary capacity (see point 1 above) and the Will has been properly executed (see point 5 below), there is a presumption that the Testator knew and approved its contents.
However, the court can request further affirmative evidence. This may be required where:
- the Testator suffers from a serious infirmity. Such as blindness or deafness, or is illiterate.
- there is a mistake in the drafting of the Will.
- the circumstances surrounding the drafting and/or execution of the Will arouse suspicion. e.g. where the person preparing the Will takes a benefit under it.
This is a common ground for challenging a Will where there are suspicious circumstances surrounding the making of the Will. For example where the person who drafted the Will is the surprise major beneficiary of the Will.
Undue influence is where the Testator has been forced by someone into making a Will/making a particular gift in the Will that they would not otherwise have done.
Coercion is the essential ingredient of any undue influence claim. The person must have been coerced into doing something they did not want to do. Mere persuasion and familial appeals are legitimate. There are many forms of coercion from actual or threatened violence to more subtle means. The physical and mental strength of the Testator are relevant in determining the amount and nature of pressure that would be required. There has to be no other reasonable explanation for the provision(s) in the Will other than that inappropriate influence was applied.
Claims to set aside a Will on the grounds of undue influence are very difficult. There needs to be independent evidence of coercion which can be difficult to obtain.
Fraud and Fraudulent Calumny
Fraud is where for example, the Will itself is forged. (It is not the Testator’s signature on the Will) Or where a person, with a view to a gain for himself or herself, suppresses or destroys a Will. Even where a person advances a Will that he or she knows to be false or invalid with a view to his or her gain.
Fraudulent Calumny is where the Will provisions are as a result of dishonest statements or actions; it is similar to coercion and is a species of fraud. The basic idea is Person A through dishonest behaviour, poisons the Testator’s mind against Person B. Who would otherwise be a natural beneficiary of the Testator’s estate. By casting dishonest aspirations on Person B’s character and as a result the Testator either leaves Person B out of the Will or leaves them a reduced sum.
The essence of a fraudulent calumny claim is that the person alleged to be poisoning the Testator’s mind must either know that the aspirations are false. Or not/care whether they are true or false. If they believe they are telling the truth then there can be no fraudulent calumny.
There are a number of formalities that must be complied with when a Will is signed. If these are not complied with the Will may not be valid.
A Will is not valid unless:
- it is in writing and signed by the Testator. Or by some other person in the Testator’s presence and by the Testator’s direction; and
- it appears that the Testator intended by his/her 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; and
- each witness either:
- attests and signs the Will
- acknowledges their signature
in the presence of the Testator (but not necessarily in the presence of any other witness).
If a Will does not comply with these formalities, it will not be admitted to probate. Unless it can either be incorporated into another properly executed testamentary disposition. Or it is a privileged or foreign Will.
Is the Will is invalid?
If a Court finds that a Will is invalid, the Will is normally set aside. It will have no effect. Any earlier valid Will would take effect. If there is not an earlier valid Will, then the Testator would be deemed to have died “intestate” (i.e. died without making a Will). Then the estate would be distributed in accordance with the intestacy rules.
If just part of a Will is found to be invalid then the court may strike out that provision and allow the rest of the Will to stand.
Other grounds for challenging the validity of a Will
There are a number of other ways a Will can be challenged. For example:
- If you have been left out of a Will or have been left with inadequate financial provision, you may be able to make a claim for the Testator’s estate. To make reasonable financial provision for you under the Inheritance (Provision for Family and Dependants) Act 1975 – please see our separate blog about this.
- If you were promised a share of the Testator’s estate and acted to your detriment in reliance on this promise. (e.g. by giving up work to care for the Testator) Then you may also have a claim against the estate.
- If you believe you have an interest in the deceased’s property. (e.g. because you contributed to the cost of purchasing it or improving it) Then you may also have a claim against the estate.
If you think you may have grounds to challenge a Will it is very important to act quickly. There are strict time limits for bringing a claim and steps need to be taken to prevent the distribution of the estate. You should therefore take legal advice at the earliest opportunity.
This is a very complicated topic and it is important to appreciate that the above information is intended to be a short summary only. It should not be treated as a comprehensive guide and should not be acted on without qualified legal advice.
How we can help
Hart Reade Solicitors is a full-service law firm with offices in Eastbourne, Hailsham, Polegate and Meads. We hold a Lexcel accreditation from the Law Society of England and Wales and are members of The Association of Lifetime Lawyers. To make an appointment with one of our civil litigation solicitors regarding Challenging the Validity of a Will or Probate dispute, please phone our office on 01323 727 321.
Alternatively, please complete the contact form below.
Please note that this article does not constitute legal advice. You should always speak to a legal professional to discuss your circumstances and consider your options.