A loved one passing away is never easy, but if you suspect that their will might not indicate their true desires, it can make the time even more challenging. There are various ways to contest a will, but it is not an easy decision to make. You will need to consider whether the claim is likely to be successful and whether it would result in a more favourable outcome than the original will. Read on for more information about what a will requires to be valid and how to contest a will.
Requirements of a Valid Will
Several fundamental requirements set out in the Wills Act of 1837 need to be met for a will to be considered valid. Firstly, the document needs to be set out in writing. Secondly, the testator (the will writer) must sign the document, or someone else must sign it in his presence under his instruction. Finally, the testator must intend for the will to be valid when signing it.
When signing the will, the testator must be in the presence of two witnesses to confirm that they are of sound mind and have considered their decision.
If you have concerns about the validity of a will, the first thing you should consider is its execution. To confirm whether these fundamental requirements were met, you may need to contact the witnesses. This can help shed some light on the circumstances during the writing and signing of the document and the other circumstances surrounding its execution. If you find that the will has been executed properly, it is valid according to the law. However, some other problems can counteract this.
If the Deceased Was Not of Sound Mind
There is an expectation that the deceased has the required mental capacity while writing and signing their will. If you are concerned that this might have been the case in your loved one’s situation, you might have grounds to challenge a will. If you successfully raise a legitimate concern that the person was not of sound mind during the will’s execution, the burden of proof falls on those seeking to prove the will. They are then required to verify that the deceased had the necessary mental capacity at the time of signing.
Different legal tests are applied to wills with suspicion of lacking mental capacity depending on when they were written. If the document was penned before the 1st of April 2007, the test of Banks v Goodfellow is applied to verify the will’s authenticity. This test stipulates that the testator must understand the nature and effect of the will they are making and must also understand their assets and property. Additionally, the individual is required to comprehend the claims that they are giving effect in the will. Finally, the test details that the individual should have no disorder of the mind that could affect the distribution of their estate.
For wills after the 1st of April 2007, capacity for a will is considered using Sections 1-3 of the Mental Capacity Act of 2005. This act makes the presumption that a person has capacity initially but might lack it for several reasons. For example, suppose at the time of the will’s execution, the individual is unable to make a decision for themselves due to an impairment affecting how their mind is functioning. In that case, the will may be considered invalid.
Claims related to mental capacity generally require access to the medical records of the deceased as well as the input of a trained medical professional.
If the Deceased Did Not Comprehend the Content of the Will
Some circumstances might make a court suspicious about the comprehension of the deceased during the execution of the will. If questions arise about this, those trying to prove that the testator had a complete understanding of their actions have the burden of proof.
Various situations could cause suspicions of misunderstanding to arise. For example, if the deceased is hard of hearing, has a speech impediment, is visually impaired or has low literacy levels, it might be possible to claim poor comprehension. Additionally, if the testator was exceptionally frail, unwell or vulnerable while writing and signing a particularly complicated will, there may be grounds for contesting a will.
If the Testator Was Under Undue Influence
If you are suspicious of undue influence on a will, you will need to petition a cause and provide proof of actual undue influence. The burden of proof is on those challenging the will in this scenario.
If you are claiming undue influence, it is best to proceed with caution. Legal precedent states that for such a claim to be successful, the court must be satisfied that no other reasonable explanation could have caused the suspicion. Therefore, you will need evidence that the testator acted against their own volition and was coerced into making the will.
Since an allegation of undue influence is of a similar scope to fraud, there is a requirement for concrete evidence to prove such a claim. Additionally, if your challenge is unsuccessful, you will likely incur high costs.
Due to how wills are executed, any potential coercion likely occurred behind closed doors without any witnesses. The primary witness (the testator) would be deceased. As a result, undue influence can be extremely challenging to prove in court.
If There is Suspicion of Forgery or Fraud
If you can prove that a will has been forged, the document is deemed invalid. If you have concerns about the origins of the will, seek the advice of a handwriting expert. They will be able to provide some input about the legitimacy of the testator’s signature and writing. You will need to give them multiple examples of the deceased’s handwriting, and they can then produce a report. However, even if they conclude that the handwriting is not the same, it is unlikely that a claim will succeed on this alone.
As a general rule, claims of fraud and forgery are relatively rare. This is because there will normally be more suitable grounds for a challenge.
How to Contest a Will
If you are concerned about the validity of a will, then the first thing you should do is seek legal counsel. Solicitors who have experience working with wills and inheritance will be able to provide you with comprehensive advice on how best to approach your challenge. They will also be able to outline the process of disputing a will and the requisite evidence you will need to proceed with your challenge.
Hugh James are experienced solicitors that can help if you are contesting a will. Consider approaching them if you are concerned that the will of a loved one is invalid for any reason.
Overall, the points above represent some of the most prevalent reasons people challenge the validity of a loved one’s will. Ultimately, caution should be exercised when contesting a will. Evidence is required to support your claims, and it could be costly should you be unsuccessful. As a general rule, if you are planning on disputing a will, you should seek legal counsel to advise you on the best course of action when mounting your challenge.