Article written by Simona Morina, Solicitor, Litigation department.
There are several ways that the validity of the Will can be challenged, however you cannot contest a Will based on emotion (i.e. you don’t like how the assets have been distributed). You must have a valid legal reason to contest a Will and it is imperative to consider whether a successful claim would produce a better result than the existing Will.
A Will must fulfil certain legal requirements for it to be deemed valid. If the Will has been properly executed, the presumption is that it is valid, unless one of the grounds set out below is proven:
1 – Lack of testamentary capacity
Lack of testamentary capacity is when someone makes a Will without the mental capacity to do so. To make a valid Will, the testator must have been of sound mind when making the Will, therefore the person challenging the Will must raise a real suspicion that the deceased lacked capacity. If they achieve this, the burden passes back to those seeking to prove the Will, to establish that the deceased did have capacity.
The criteria set out in the legal case of Banks v Goodfellow  LR 5 QB 549, provides that when someone makes a Will, they must:
a) Understand that they are making a Will.
b) Understand that the Will sets out their estate and how it will be divided upon their death.
c) Know who may have a claim on their estate – known as the beneficiaries.
d) Be aware of the value of the estate and assets; and
e) Be mentally ‘sound’ and not suffering from a mental illness that affects their ability to make decisions about their estate.
To make a valid Will, the person must understand the effect of what they are doing. Towards the end of life, a person may begin to lose their mental capacity. If an individual’s mental capacity is in question when making a Will, it is important they do not make changes to their Will or draft a new one without a capacity assessment being carried out by a suitably qualified person.
A Will is occasionally challenged when, for example, it is alleged that it has been improperly executed. This could occur if one (or both) of the witnesses named in the Will did not actually witness the testator signing the Will.
2 – Lack of valid execution
A Will drawn up without the right legal requirements being attended to lacks valid execution and will be invalid.
A Will is invalid if:
a) It’s not in writing.
b) It is not signed by the testator; and
c) The testator’s signature is not witnessed by two independent people.
3 – Undue influence
Undue influence is a term that relates to pressure being applied on the testator or the testator being coerced to write a Will or change an existing one.
To be successful in challenging on these grounds, actual undue influence must be demonstrated. This includes evidence of assets or part of an estate being given to someone as a direct result of manipulation towards the testator. Should you wish to find out more about undue influence then we can advise you further.
4 – Fraud/forgery
A Will which has been forged, is invalid. An example of a forged Will is if the testator’s signature on the Will is not their own and has been signed by a third party. If a testator’s signature is questioned it may be advisable to obtain a handwriting opinion from an appropriate expert to assist in determining whether the testator’s signature/handwriting is genuine. The expert will probably want to see a number of original samples of the deceased’s writing and signatures for comparison purposes.
5 – Lack of knowledge/approval
If the person making the Will was not sufficiently aware of its contents, it may be invalid due to the testator lacking “knowledge and approval’. there are a few circumstances where the Court may require evidence to prove that the testator did have the required knowledge and approval. Examples of the types of situations where disputes could arise include:
a) The person making the Will was hard of hearing or had a speech impediment.
b) The person making the Will had low levels of literacy.
c) The person making the Will was visually impaired.
d) The person making the Will was frail, unwell, or otherwise vulnerable, and the Will is particularly complex or unusual.
e) The Will was signed by someone other than the person making the Will at his or her instruction.
6 – Rectification
The rectification of a Will is the legal procedure relied upon when a Will does not reflect the wishes of the testator due to, for example, a clerical error being made, or there was a failure, by the person who prepared the Will, to understand the testator’s intentions. This is set out in Section 20 Administration of the Justice Act 1982.
An example of a clerical error is where a mistake is made in recording the testator’s wishes in their Will. This could include typographical errors, writing something which was not intended or failing to include something which was intended to be inserted in the Will such as a word, figure, or name.
If an application for rectification of a Will is made, the Court (if satisfied that the claim is properly made) may decide to rectify the Will to give effect to the true intentions of the deceased. Such a claim must be issued within 6 months of a Grant of Probate / Letters of Administration being issued.
If it is believed there has been a mistake in the drafting of a Will, the initial steps that should be taken include obtaining and review the solicitor’s file (assuming the Will was professionally drafted), together with a statement of the solicitor’s understanding of the deceased’s wishes. If it becomes apparent that the Will writer understood the instructions, but imply incorrectly applied the law, then the Will would still be valid, but there may be a claim for professional negligence.
As demonstrated above, there are several ways a Will can be challenged. If you feel you have legitimate grounds to challenge a Will. Initial investigations should be made early before the estate has been substantially administered. If an estate has been substantially administered, this may impact on the Court’s approach.
If Solicitors are instructed in good time, a document known as a Caveat, may be issued which will prevent a Grant of Probate from being obtained. If an executor is informed of a claim regarding the validity of the deceased’s Will and that claim is disputed by the estate, then prompt legal advice should be sought by the Executors of the estate.