If you are concerned about the validity of a Will, it is important to seek legal advice as soon as possible in order to clarify whether there are grounds for challenging it.
There are a number of different grounds on which to challenge the validity of a Will.
Lack of Testamentary Capacity
The legal test is given in the landmark case of Banks v Goodfellow 1870, which provides that a person making a Will (a testator) must:
- Understand the nature of making a Will and its effects.
- Understand the make up and value of the estate being disposed of in the Will.
- Understand and appreciate the claims to which the person making the Will ought to give effect (for example, who is being included in, or excluded from, the Will).
- Be of ‘sound mind’, which has a specific legal meaning
Each of these points could be used as a ground for challenging a Will.
Undue Influence, Fraud of Forgery
A person making a Will may be unduly influenced, coerced or placed under duress by another individual to such a degree that it destroys their free will. A claim of undue influence will need evidence to a high standard.
A Will may also be invalid because it can be shown to be a forgery or the subject of fraud.
Lack of Due or Valid Execution
Whilst there is a legal presumption that a Will is valid, a Will may be challenged as invalid if it does not meet one of the requirements of section 9 of the Wills Act 1837:
- The Will must be in writing, and signed by the testator , or by some other person in their presence and at their direction;
- It must appear that the testator intended, by their signature, to make the Will effective..
- The testator’s signature is made or acknowledged in the presence of two or more witnesses present at the same time
- Each witness either attests and signs the will or acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness).
Lack of knowledge and approval
The testator must have knowledge and approval of the Will and its contents.
Lack of knowledge and approval of a Will may arise, for example, as a result of a mistake in the preparation of a Will.
We have a dedicated Wills, Trusts and Probate team who are accredited for excellence under the Law Society’s Wills and Inheritance Quality Scheme. If you have any concerns about challenging a Will, then please get in contact with a member of the team today and they will be able to help you further.