There are several ways to go about challenging the validity of a Will, as it depends on the circumstances surrounding the creation of the Will at the time.
Before going ahead, it is imperative to be mindful of what will happen if the Will is successfully challenged. For instance, if there is a previous Will, the terms of that document will likely be admitted to probate.
If there is no previous Will, the rules of intestacy will apply. This is why making the decision to challenge a Will is one that should not be taken lightly and you should consider that it might not produce a better result than the existing provisions. Wills can be challenged for any one or more of the following reasons:
1. Lack of testamentary capacity
This is the most common way of challenging a Will. If someone did not have the mental capacity to make a Will, they are referred to as ‘lacking testamentary capacity’. Essentially, was the testator of ‘sound mind’ when the Will was executed? There are many reasons why someone could be rendered as lacking capacity, for instance, if they were suffering from dementia.
In these types of claims, the medical records of the deceased, as well as an opinion of a qualified medical expert may be key.
2.Lack of proper formalities
Section 9 of the Wills Act 1837 outlines the requirements that a Will must be: –
- In writing;
- Signed by the testator (or by someone else in the testator’s presence on his behalf);
- Signed in the presence or two or more witnesses.
If there are suspicions about the validity of a Will, it may be worth investigating whether it was properly executed at the time it was made. This may involve contacting the witnesses to the Will to obtain evidence about how the Will was executed in their presence at the time.
As with every rule, there are exceptions. The above formalities do not apply to members of the armed forces, or any mariner or seamen being at sea. These are referred to as ‘Privileged Wills’ and can be valid whether they are oral or written. This is useful as the Will is capable of being created at short notice and where a person is about to put their life at risk.
3.Fraud or forgery
If a Will has been forged or is produced through fraudulent means, it is deemed invalid. Forgery could be, for example, if a person prepares a Will in someone’s name and forges their signature.
If someone causes a testator to change their Will by making a false statement about the character of a beneficiary. This is referred to as fraudulent calumny which means that they ‘poisoned the mind’ of the testator.
4.Undue influence
This is when a testator is unduly influenced or coerced when making a Will. If this is proved, the Will is deemed invalid. Undue influence tends to occur ‘behind the scenes’ by people in positions of trust such as a partner, child, or carer.
There are two types of undue influence: actual and presumed.
5.Lack of knowledge and approval
The testator must know and approve the contents of any Will that they have executed. This is different to a lack of testamentary capacity, as it is a specific question of whether the testator was aware of the full extent of what was mentioned in the Will. This might be the case if the testator was blind, deaf, or mute, unable to read, write or speak or if they were paralysed. Additionally, this might also be the case where the Will was not properly explained by an estate practitioner/Will writer so the testator would not have known, understood and approved the terms and effect of their Will.
6.Rectification
If there is a clerical error in the Will or the Will does not reflect the testator’s true intentions, it may be rectified to address this failure.
A construction claim may be brought by an interested party if the words in the Will are ambiguous and may result in the court being asked to determine the true meaning of the words used in the Will (at face value).
7.Inheritance Act 1975
The Inheritance Act provides a mechanism whereby those who are eligible to make a claim against an estate where they feel they have not been given reasonable financial provision. What is deemed as reasonable financial provision will depend on a number of factors such as how financially dependent you were on the deceased and your relationship to the deceased.
Time is of the essence when it comes to challenging a Will so the earlier, the better. However, there are some time limits that apply depending on the nature of the claim. Some grounds have a strict time limit of six months to make a claim from the date of issue of the Grant of Probate.
How can a solicitor help with the first steps of challenging a Will?
The sooner a solicitor is instructed, the sooner preventative action may be taken to give you the best opportunity to put forward your case. For instance, a ‘block’ (known as a ‘caveat’) may be filed by your solicitor which prevents someone from obtaining a grant of probate and administering the estate while the challenge is being investigated.
Contact our Litigation and Dispute Resolution experts
Nadine Esaid is a Solicitor, Steve Wade is a Partner and Charles Jamieson is a Senior Associate in the Bishop & Sewell Litigation and Dispute Resolution team. If you would like to contact a member of the team please call on 020 7631 4141 or email nesaid@bishopandsewell.co.uk.
The above is accurate as at 17 May 2024. The information above may be subject to change.
The content of this note should not be considered legal advice and each matter should be considered on a case-by-case basis.
