Mental Health

Challenging the validity of a will

There a number of different ways to contest a will. These can be based on the grounds of a lack of testamentary capacity, undue influence, lack of valid execution, lack of knowledge or approval and fraud or forgery.

Can you challenge a will – How do you Challenge a will?

WSP Solicitors’ Wills and Inheritance Disputes team are experienced in advising on and supporting you through a number of different will disputes. In order for a will to be valid it must meet conditions as set out by the law of probate and if it fails to meet these conditions it could be invalid.

 

If you are suspicious 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. Below we have provided you with some details on the different grounds to help you check whether you may have a case.

A Lack of Testamentary Capacity

The person making the will must be sound of mind. The legal test is set down in the 1870 case of Banks v Goodfellow which states that, for a will to be valid, a person must:

 

    1. Understand that they are making a will and the effect of that will
    2. Know the nature and value of their estate
    3. Understand the consequences of including/excluding certain people in their will
    4. Not be suffering from any ‘disorder of mind’ which may influence their views
If a will dispute arose because someone was concerned over the capacity of the person making the will then any of the above concerns would be the starting point for challenging a will on the grounds of a lack of testamentary capacity.

Undue Influence

To prove that a person was unduly influenced, coerced or under duress when making a will the evidence required must show undue influence.

 

The evidence required to prove undue influence would need to be of a high standard, to the extent that there is no other reasonable theory to explain the terms of the will. If you believe that a person has made a will as a result of significant coercion by another person or you are facing such a claim, our will dispute solicitors can help.

Lack of Valid Execution

In a claim for lack of valid execution, also known as ‘lack of due execution’, a will is invalid if it fails to meet one or more of the requirements as set out in s.9 Wills Act 1837 –
    1. The will must be in writing and signed by the testator or signed by someone else in their presence, who has been directed to do so by the testator
    2. It must appear that the testator intended by their signature to give effect to the will
    3. The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time
    4. Each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness
The legal presumption is that a will has been validly executed unless there is evidence to the contrary such as doubts over any of the above factors. There are also strict rules about who can and cannot witness a will.

Lack of knowledge and approval

A person must have knowledge of, and approve of, the content of their will. They must know that they are signing a will, and approve of its contents.

 

It is possible to contest a will on the basis of a lack of knowledge and approval even if the will appears to be validly executed and the testator had mental capacity. It must be shown that the testator was not aware of the content of the will or that there were suspicious circumstances.
For instance, where there is a substantial gift in the will to a person who helped prepare it.

Fraud or Forgery

You are able to contest a will if you believe it was forged or fraud has taken place. The standard of proof that is needed is extremely high.

We can help with...

Making a claim under the Inheritance Act 1975

Challenges to the validity of a will

Contesting a will

Defending an estate against a claim or challenge to the will

Meet the WSP team

Meet the team

Catherine Green, Partner and Civil and Commercial Disputes Solicitor at WSP Solicitors Stroud

Catherine Green

Partner

Stroud Office

Ashley Wallace-Cook, Wills, Trusts and Probate Partner at WSP Solicitors Gloucester

Ashley Wallace-Cook

Partner

Gloucester Office

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