Contesting a will is becoming more common and understanding how a will can be challenged can help prevent disputes arising in the first place.
If you are considering contesting a will here are the grounds on which a will can be contested:
1) Lack of formalities
A Will is invalid if it is not signed by the testator in the presence of two witnesses. The witnesses must also sign the Will in the presence of the testator.
2) Lack of testamentary capacity.
This is the most common ground for disputing a Will. It is particularly relevant due to the UK’s ageing population. The Alzheimer’s Society estimates that there are 800,000 people in the UK with dementia. For the Will to be valid, the testator must:
a) understand the nature and effects of making the Will;
b) understand the nature and value of their estate;
c) appreciate the claims to which they ought to give effect; and
d) not be suffering from any disorder of the mind which may influence them in disposing of their assets.
This test was set out in the 19th century case of Banks v Goodfellow.
An important point is that incapacity may be temporary. A person who, say, lacked capacity one morning may have capacity later on in the afternoon if they are experiencing a lucid interval.
As well as the above test outlined in Banks v Goodfellow, the Mental Capacity Act 2005 is also relevant. This legislation sets out that a person should not be treated as lacking capacity unless every step has been taken to enable him or her to make the decision without success.
Where a Will is drawn up for an elderly person, the Courts have indicated that it is best practice for the Will to be witnessed and approved by a medical practitioner. This is known as the ‘Golden Rule’.
3) Lack of knowledge and approval
Even if the testator had capacity, the testator must know and approve the contents of the Will for it to be valid. Generally, there is a presumption that if the Will has been validly executed and the testator had capacity then the testator knew and approved of the contents.
However, there may be suspicious circumstances which may indicate that the testator did not know and approve of the contents, for example if the person who prepared the Will is left a significant sum as a gift.
4) Undue influence
This is generally a difficult claim to prove. The testator, who would otherwise be the key witness, obviously cannot give evidence. To prove a claim of undue influence, it is necessary to show that the pressure placed on the testator by a third party overpowered their free will. There must be coercion, not simply pressure.
5) Fraud or forgery
A Will can be contested on the grounds that it was fraudulently made or forged.
It should also be noted that a Will is revoked if the testator marries, makes a later Will or destroys the original.
If you wish to dispute or contest the validity of a Will, legal advice should be taken. A caveat prevents a grant of probate from issuing until it is removed and they are often entered where there are doubts as to the validity of a will. The caveat remains effective for 6 months and can then be extended for another 6 months by application in writing.
For a initial discussion about contesting a will or Contentious Probate contact Paul Davis