Or not as the case may be…
Wills are incredibly powerful documents, which enable people to decide who their assets will be left to when they die. If a person decides not to make a Will, they will be at the mercy of the intestacy rules. This may result in a person’s assets being inherited by someone who they would not wish to benefit.
However, even if a Will is made, it will not necessarily be valid.
The Courts are increasingly busy with disputes involving Wills and contested probate actions.
Understanding how a Will can be challenged can help prevent disputes from arising in the first place. In addition, if someone has been left out of a Will they believe was not validly made, it is important that they know what their options are. An important point is that there is very little reason for a person to challenge a Will if they will not benefit under a previous Will or the intestacy rules.
The grounds on which a Will can be challenged are:
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 challenging 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 to; 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, lacks 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 of 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 prepares 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, cannot give evidence as to whether he has been unduly influenced for the obvious reason that he has died! The Courts also take allegations of undue influence very seriously.
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 persuasion.
5) Fraud or forgery
A Will can be contested on the grounds that it was fraudulently made or forged.
Finally, it should be noted that a Will is revoked if the testator marries, makes a later Will or destroys the original.
By Paul Davis. Paul is a Solicitor at BHW Solicitors in Leicester and regularly writes on probate matters. Paul can be contacted on 0116 281 6231 or at firstname.lastname@example.org
For further details of BHW Solicitors' contentious probate services see https://bhwsolicitors.com/dispute-resolution/contentious-probate/.