Legal Question of The Week

How can I challenge a will?

• 4th Mar 2019
• Article written by Emma Salmon
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Broadly, there are two bases upon which a Will can be challenged. These are if the will in itself if invalid or that the will does not make reasonable financial provision for certain categories of beneficiaries. This note will solely look at when a Will could potentially be invalid.

The most common grounds relied on to challenge the validity of a Will are in brief as follows:

Lack of due execution

A Will must meet certain requirements to be valid in accordance with Section 9 of the Wills Act 1837. If the Will fails to meet one or more of the requirements it will not be valid. These requirements are:

• The Will must be in writing;
• Signed by the testator or by someone who has authority to do so on behalf of the testator.
• The testators must sign or acknowledge their signature in the presence of at least two witnesses.
• Each witness must sign the will or acknowledge their signatures in the presence of the testator (but not necessarily in the presence of each other).

The legal presumption is that a Will has been validly executed unless there is sufficient evidence to the contrary.

Lack of testamentary capacity

To make a valid Will the testator (the individual making the Will) must have the requisite mental capacity. The requirements for this are found in the case of Banks v Goodfellow [1870] in which the Court held that for a Will to be valid the testator must:

• Understand that they are making a Will and the effect of that Will;
• Understand the nature and extent of the property of which they are disposing;
• Understand the consequences of including and excluding certain people under their Will and appreciate the possible claims this could result in; and
• Not be suffering from any ‘disorder of the mind’ that shall ‘poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his Will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made’

To challenge the testators capacity it would be essential to obtain medical evidence to help determine whether the above grounds could be satisfied.

Lack of knowledge and approval

The testator must know and approve the contents of the Will. There will be a presumption of knowledge and approval if the testator had the requisite capacity and due execution took place but this presumption can be rebutted if suspicions are raised surrounding the preparation of the Will.

Undue influence

The testator must not be subjected to undue influence or coerced into making the Will. This factor is one of the hardest to prove as most undue influence or coercion would typically take place behind closed doors by people in a position of trust. Therefore, the evidence to prove this must be of a specifically high standard, to which there is no explanation for the terms of the Will.

This evidence must prove ‘actual undue influence’ to that person and the burden of proving this is on the person making the allegation.

For more information on this issue or a similar issue you can contact Emma Salmon here.