Palmers Solicitors

Challenging Wills

There are two main reasons why a will may be challenged:

(a) A belief that the will is invalid

(b) A belief that the challenger has not been adequately provided for within the will

While this article only deals with (a),  you can click on this link for further information on (b)

On what grounds can the validity of a Will be challenged?

There are five:

1. Lack of capacity – A person making a will (‘the testator’) must be able to understand what he is doing. Where the testator is old and/or suffering from some form of mental or physical infirmity, this may be called into question.

2. A failure to comply with the necessary formalities – The law demands that for a will to be valid, it must be in writing and signed by the testator in the presence of two independent witnesses. The witnesses must also sign the will in the presence of the testator. It is surprising how often people fail to comply with these rules, especially where the process is not supervised by a professional.

3. Lack of knowledge and approval – The testator must be aware of and understand the content of the will he signs. While it is normally presumed that this is the case, there will sometimes be suspicious circumstances surrounding the will which warrant further investigation, e.g. where someone who benefits under the will is responsible for or involved in its preparation, where the person concerned has relevant capacity, but is old and/or suffering from a mental or physical infirmity and insufficient care has been taken to ensure that the testator fully understand the contents of the will.

4. Undue influence and fraud – This ground is the least often argued and the hardest to prove. It must not only be proved that the testator was influenced by a third party, but that the influence was such that the testator signed the will when he did not really wish to. Fraud may be argued where it is believed that the signature of the testator was forged or that the testator has only made the will as a result of being misled.

5. Revocation – This applies where the testator has destroyed the will (as no longer to apply) or where the will has been revoked by operation of law, either by a later will being made by the testator, or by the testator’s marriage, after the will was made.

There are various reasons why claims of this kind are becoming increasingly common.

The main reason is perhaps that the average person is both more wealthy now than they have ever been before and more likely to have had a falling out with one or more people who might expect to benefit on their death.

In addition increased life expectancy means the number of people who suffer from some form of mental disability prior to their death is increasing.

The seeking of professional advice in relation to the making of your will should reduce the chances of any such claim being made and of any claim being successful. Many people are tempted to make their own will or to use unqualified will-writers to help them. This both increases the chances of there being doubt over one or more of the above factors and reduces the likelihood of there being clear evidence to prove that the will is indeed valid.

Professional advice at the time of making a will should assist in reducing the chances of a later claim being successful.

If you believe that you may be entitled to pursue a claim then please contact one of our offices in order to make an appointment to meet with our solicitors for further advice.

Lee McClellan

Supervising Partner, Private Client

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