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Challenging a Will
There appears to be an ever-increasing appetite for individuals to consider challenging a will. At the same time, there is understandable concern by those preparing wills that their will may be challenged. The well-publicised case of Ilott v The Blue Cross has brought these issues to the fore.
When considering whether or not an action can be brought to challenge a will, there are essentially two approaches:
1. arguing that the will was not valid; or
2. accepting that the will was valid, but arguing that insufficient provision has been made for the individual seeking to bring the claim.
This article will focus on the former, with the next articles in this series focusing on the latter approach.
When looking to the challenge the validity of a will, there are five main areas to consider:-
- 1. Did the testator lack the capacity to make a will?
The longstanding case of Banks v Goodfellow (1870) sets out the well-established principles and requirements for a testator’s capacity to be established. The testator must:
- know they are making a will and understand what effect it has;
- understand the extent of the property of which they are disposing;
- be able to comprehend and appreciate what steps to take in relation to their estate, and what claims there might be to it; and
- have no disorder of the mind that would affect their decision regarding how to dispose of their property by will.
- 2. Was the Will properly executed?
Section 9 of the Wills Act 1837 sets out the requirements for a will to be properly executed. The will must be:-
- signed by the testator, or by another person in their presence and by their direction;
- in the presence of two or more independent witnesses present at the same time, who must attest and sign the will.
The requirements 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.
- 3. Was the testator coerced into signing a will?
Coercion, or ‘undue influence’, involves the testator being overpowered by the pressure of another to such an extent that the testator’s own discretion and judgment regarding their will is overborne. A person may also have made false representations about the character of another person for the purpose of influencing the testator to exclude that person from the will.
- 4. Did the testator have knowledge of and approve the contents of the will?
The testator must know and approve of the contents of the will that they are making. Claims relating to lack of knowledge and approval will often involve the presence of suspicious circumstances, such as the provisions of the will being out of character or very different to those in a previous will, or the will not having been read over to the testator. Such claims might also arise where the testator suffered from some form of mental or physical disability.
Lack of knowledge and approval can sometimes be the final basis of a claim, particularly if there is little evidence of coercion, the testator had capacity and the will appears to have been properly executed.
- 5. Is there a possibility the will has been forged?
Forgery may be difficult to prove, due to the significant amount of evidence such a claim requires as a result of it being a form of fraud. It is usually necessary to instruct a handwriting expert to assist. However, a handwriting expert may be unable to give a categorical opinion on the likelihood that a document has been forged.
If it seems that there are none of the above grounds present for challenging the validity of a will, you may be able to argue that insufficient provision has been made for you under the will. Our next article will deal with this topic in more detail.
Please contact Lauren Mackenzie for further information.
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.