We have many years of experience in advising and supporting clients through a range of Will disputes, including challenging the validity of a Will.
When challenging the validity of a Will, there are several grounds to consider however, normally a challenge to a Will would fall within one of the following categories:-
A Lack of Valid Execution of the Will
For a Will to be valid, it must comply with Section 9 of the Wills Act (1837). This means:-
- It must be in writing and signed by the person making the Will (the Testator);
- The person making the Will must have signed it with the intention of creating a valid Will;
- The Testator’s signature is made in the presence of two or more witnesses present at the same time;
- Each Witness must sign the Will, or acknowledge his signature in the presence of the Testator (but it is not a requirement that they witness in the presence of each other, although this is often the case)
If a Will is drawn up and executed without the above legal requirements being in place, then the Will can be challenged on the grounds of improper execution.
A Lack of Testamentary Capacity (mental capacity)
The Testator (the person who makes the Will) must have been of sound mind at the time the Will was created. If someone did not have the mental capacity to make a Will, this is called “lack of testamentary capacity”.
The person who makes a Will must understand that they are making a Will, and that the Will sets out how their Estate will be divided after their death. They must also understand the nature and extent of their assets, who can make a possible claim on their Estate, and must not be suffering from an illness which effects their ability to make a decision about how their Estate should be divided. A Will is invalid if someone makes or changes it without the necessary testamentary capacity. If this happens, their Estate will be administered in accordance with their last earlier valid Will, or if they had no previous Will then their Estate will be divided according to the rules of intestacy and these rules set out who will inherit when there is no Will.
Many people only make or change their Will later in life and this can be at a time when they are ill or effected by conditions such as dementia or Alzheimer’s, or suffered with confusion or memory loss. If you think that someone has made a Will during a time when they lacked mental capacity we can help by seeking to obtain the Solicitors or Will Writer’s Will file for the time when the Will was prepared and executed, to see whether there is any evidence that the Will writer was concerned about the Testator’s capacity. We can also seek to obtain the Testator’s medical records (i.e. GP records, hospital records or care home records) as these records may provide evidence of the Testator’s capacity at the time the Will was made and executed.
A Lack of Knowledge of the Content of a Will and a Lack of Approval
If the person making a Will (the Testator) is not aware of its content, this is called “lack of knowledge and approval”. For a Will to be valid, the Testator must know the contents of the Will and approve them. This can be done by the Testator simply reading over the Will before it is executed, or the Will may be read out (and explained) to the Testator. Each case would be dependent upon it’s own facts.
Such cases will always involve an investigation around the circumstances surrounding the execution of the Will because, if for example, the Testator was blind or deaf it is important that there is clear evidence to show that the Will was presented to the Testator in such a way that he or she could have approved its contents.
Undue Influence When Making the Will
A Will can also be challenged if someone exerts pressure on a Testator to create or alter their Will in a manner that does not reflect their true wishes. This ground is known as “undue influence” and is commonly argued when an older person makes a Will, or makes alterations to their existing Will, or when a person who has testamentary capacity is considered vulnerable, and in either case, is usually being cared for by a controlling character. It is however not sufficient to simply show that a person had power over the Testator for example.
Anyone making a challenge to the validity to a Will under this ground must be able to provide clear evidence that a power over the Testator was exercised and that the Testator was coerced into making the Will rather than just influenced to make or change their Will. There must be no other reasonable hypothesis for the creation/alteration in the manner it is done, than the Testator being forced to do so beyond their wishes by the person exerting the undue influence.
Signs that someone may have exerted undue influence on a Testator are that the Testator has made last minute changes to their Will and the changes were unexpected or with no explanation. More often than not, undue influence arguments arises when a Testator was dependant upon a Beneficiary that has been named in the Testator’s Will, largely to the exclusion of others or the previous Beneficiaries.
Theft, Fraud and Forgery of a Will
A claim can be made to challenge the validity of a Will on the grounds of theft, fraud or forgery, although they are notoriously difficult claims to establish, and due to the cross over with criminal law, the burden of proof in these types of claims is higher than in civil claims alone.
A Will can be challenged if it can be shown that someone has forged the Testator’s signature or any part of the Will was falsified. An example of when a Will can be challenged under such circumstances is if someone makes a Will pretending to be the Testator and gifts themselves all the Testator’s money and property. This would be a clear case of fraud and more often than not would require handwriting expert evidence to prove the signature on the Will was not that of the Testator.
Will fraud can also happen if someone destroys a Testator’s most up to date Will so that it will be replaced with the Testator’s earlier Will. This can happen if an earlier Will benefits a certain beneficiary who has been left out of the Testator’s most recent Will. A further example of Will fraud is if the Deceased was tricked into signing a document not knowing it was a Will, or if they signed it as a result of misrepresentations made to them by another person.
Revocation of a Will
The validity of a Will can also be challenged if there is clear evidence that the Testator revoked that Will before their death, by either making a new Will, or by destroying the old one with the clear intention of revoking it (i.e. by burning it, tearing it up or shredding it).
Conclusion
When someone is considering contesting a Will, perhaps due to suspicion over the Testator’s testamentary capacity, or a suggestion of undue influence or lack of valid execution, a sensible first step to establish whether or not there are good grounds for a claim, is to ask the Will writer for information and documents surrounding the preparation and execution of the Deceased’s Will. A request for this information is known as a Larke v Nugus request and usually contains a request for a copy of the Will writer’s file and papers relating to the preparation and execution of the Will.
When advising clients on Will validity claims we always consider sending a Larke v Nugus request as a first step to obtain the necessary evidence to challenge the validity of the Will. What other steps we suggest be taken will be dependent upon each case and the facts behind each case.
Contact our executor disputes lawyers in Yorkshire
To arrange an initial consultation about challenging the executor of a Will or any other contentious probate matters, please contact our local offices in Wakefield, Ossett, Garforth, Sherburn in Elmet or Mapplewell, Yorkshire today.
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☎️ Call our Wakefield office on 01924 290 029
☎️ Call our Garforth office on 0113 246 4423
☎️ Call our Sherburn in Elmet office on 01977 350 500
☎️ Call our Mapplewell office on 01226 339 009
☎️ Call our Ossett office on 01924 586 466
