If you have significant doubts as to the validity of a Will you may be able to contest the Will.
Clearly before doing so you need to consider a wide range of factors including if the existing Will is declared invalid whether you would benefit to any greater or lesser extent under a prior Will or if there is no prior Will whether you would benefit from the deceased's estate under an intestacy. Realistically a Will could potentially be challenged on one or more of the following grounds:
Lack of Testamentary Capacity
A person must have sufficient mental capacity to make a Will. The test for determining mental capacity in this context is set out in the case of Banks v Goodfellow [1871]. For a Will to be valid the person making the Will, the testator, must:
• Understand the nature and effect of making a Will
• Understand the extent of the property which he/she is disposing
• Be able to understand and appreciate the consequences of their testamentary dispositions
• Not be affected by any mental disorder which may effect how he/she leaves his estate
Lack of Valid Execution
To be valid a Will must comply with the requirements set out at s.9 of the Wills Act 1837:
• It must be in writing
• It must be signed by the testator or someone else in his presence at the testator's direction
• It must appear that the testator intended his signature to give effect to the Will
• The testator's signature must be made in presence of two or more witnesses
• Each witness must be present at the same time and must attest and sign the Will or acknowledge their signature in the presence of the testator but not necessarily in the presence of any other witnesses
Want Of Knowledge and Approval
The person who made the Will must have been aware they were signing a Will and had knowledge and approval of the contents of the Will in order for it to be valid.
When the circumstances surrounding the making of a Will seem suspicious then it may be possible to bring a claim under this heading. Potential grounds for suspicion include:
• If the Will has not been professionally made
• If it contains inaccuracies or language not usually used by the testator
• If it significantly changes the dispositions set out in a previous Will and this change cannot be supported by any outside evidence
• If a significant beneficiary of the Will and the testator did not have a close relationship
• The witnesses to the Will were not independent
• The testator lacked mental capacity
Undue Influence
Actual undue influence which one person has exercised over another and which may have led to a testator making certain testamentary dispositions is extremely difficult to prove. To potentially succeed in an undue influence claim a Claimant must prove:
• The Defendant was in a position to exercise influence
• The Defendant did exercise influence over the testator
• The influence exercised was undue
• The undue influence was exercised in relation to the disputed Will
• It was by means of the exercise of that undue influence that the disputed Will came to be executed
To challenge a Will solely on undue influence grounds there must be clear and significant evidence of undue influence.
Fraudulent/Forged Wills
If you believe a Will has been forged which could take the form of someone forging the alleged testator's signature or typing/writing a Will above a valid testator's signature then this is a clear ground for challenging the Will.
In these circumstances the evidence of the alleged witnesses to the Will is crucial and it is often necessary instruct a handwriting expert to examine a testator's signature.
Rectification of Wills
It may be possible to seek to have a Will rectified where it fails to carry out the testator's intentions because of an error in the Will or negligence by the person who prepared the Will as a result of their failure to ensure the Will reflected the testator's intentions.
In the case of Marley v Rawlings [2014] it was stated by Lord Neuberger that a disputed Will should be interpreted in the same way as a contract and that the “surrounding circumstances” should be taken into account to help identify the testator’s intentions.
If you wish to contest a Will then it is important to act promptly. David Richards and the team at Brethertons have significant expertise in dealing with contentious probate claims and achieving successful outcomes for clients.