Disputing a Will
We have experience in both making and defending claims disputing the validity of Wills.
There are a number of grounds to challenge a Will and it is often possible to dispute a Will on more than one ground.
The most common grounds for disputing a Will include:
1. Alleging that the Will has not been validly executed.
In order to be valid a Will must comply with the Wills Act 1837 in that it must be
a) in writing (save in very particular circumstances)
b) signed by the person making the Will in the presence of two independent witnesses who should also sign the Will
If the Will has not been validly executed then it will be invalid and the terms or an earlier Will or the intestacy rules may apply.
2. Alleging a lack of Mental Capacity on the part of the person making the Will.
A person must have the capacity to make a Will when they draw up and sign a Will and it must be shown that they
a) understood that they were making a Will and the effect of making a Will and,
b) that they understood the extent of the property of which they are disposing of under their Will and,
c) that they were able to comprehend and appreciate any individuals that they should consider benefiting under their Will,
Please note that it is not just medical illnesses that may affect a person’s mental capacity other inhibitors such as alcohol or drugs may also impact on a person’s mental capacity.
3. Alleging a lack of knowledge and approval of the content of the Will.
Generally speaking when a Will has been validly executed it is not necessary to also prove that the person making the Will also knew and approved the contents of the Will.
However if the circumstances surrounding the making of the Will are such that they raise suspicions then the person wishing to prove the Will must satisfy the Court that the person making the Will knew and approved the contents.
Suspicious circumstances could include:
- Where the Will has been prepared by/on the instructions of a major beneficiary of the Will and no independent advice has been received
- Where the person cannot read and understand the Will because of an infirmity and the Will has not been read over to them.
If the Court decides that a person did not know and approve the contents of a Will they may set it aside.
4. Alleging undue influence
Undue influence in the context of Wills is where someone puts pressure on a person to make his or her Will in a certain way.
It is very difficult to set aside a Will for undue influence as it is necessary to show that a level of pressure has been placed on a person is almost equivalent to actual physical coercion to make the Will as it has been.
There is often very little direct evidence that this has occurred which makes it very difficult to prove.
5. Alleging fraud on the Will maker
Where a person makes a dishonest representation to someone making a Will and as a result of this dishonesty benefits under the Will this is known as a fraud on the Will and if proven the Courts may set aside the gift in the Will or even the Will itself.
6. Alleging forgery of the Will or signature
If someone alleges that a Will or a signature on a Will is a forgery then it is necessary for him or her to show on the balance of probabilities that the document or signature is fake. This is very difficult to prove and if is often necessary to obtain expert evidence from handwriting experts.