Challenging a Will: when it is invalid
By Lauren Mackenzie, Senior solicitor specialising in Dispute Resolution and Mediation.
There is ever increasing appetite for individuals to consider challenging the terms of a Will, and at the same time, a concern by individuals preparing Wills that their Will may be challenged.The well-publicised case of Ilott v Mitson has brought these issues to the fore.
When considering whether or not action can be brought to challenge a Will, there are essentially two scenarios:
- Scenarios in which the Will itself is found invalid. If this applies, either a prior Will which is valid will apply, or the Testator will be treated as intestate;
- Scenarios where the Will is valid but insufficient provision has been made for particular individuals
This article will focus on the former, with two future articles to focus on the latter.
When looking to the challenge the validity of a Will there are four main areas to consider:
- Did the Testator lack the capacity to make a Will?In the case of Banks v Goodfellow (1870) it was held this means the testator needs to:
- understand the nature of the will and its effect
- have some idea of the extent of the property of which they are disposing under the will; and
- be aware of the persons for whom the testator would usually be expected to provide (even if he chooses not to) and be free from any delusion of the mind that would cause him reason not to benefit those people.
- Was the Testator coerced into signing a Will?This is hard to prove, but sometimes there may be evidence of undue influence sufficient to invalidate the Will.
- Was the will invalidly executed? Section 9 of the Wills Act, as amended in 1982, sets out the requirements for a Will to be properly executed.The requirements for the Testator to sign the Will, being duly witnessed by two independent individuals, both of whom are also present at the same time can be a cause for concern, particularly with homemade Wills.A professionally drafted Will should contain an appropriate attestation clause, ensuring that the formalities are complied with.
- Did the Testator lack knowledge and approval of the Will? Sometimes, even where there is not enough evidence to show coercion, it is still possible to show that the Testator did not have knowledge of, and did not approve of, the Will.
For assistance in challenging the validity of a Will, or defending any challenge, please email us.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.