Contesting the Validity of a Will

There are five reasons why the validity of the Will can be challenged. These are:

1. Lack of due execution
2. Lack of Testamentary capacity
3. Lack of knowledge and approval
4. Fraud or Forgery
5. Undue influence

Lack of due execution

Under section 9 of the Wills Act 1837 (WA 1837), no will is valid unless it is in writing and was signed in a particular manner. This involves the testator signing at the end of the document and their signature being made in the presence of two or more witnesses who are present at the same time, and who sign the will in the presence of the testator.

The presumption of due execution will apply where there is a proper attestation clause, even if the witnesses have no recollection of having witnessed the Will, and the court will require strong evidence before deciding the Will was not duly executed.

Lack of testamentary capacity

When a person executes their Will, they must at that time have the requisite mental capacity to do so. This means that they must understand what they are doing, and the extent of the property which they are giving away in the Will. They need to be able to comprehend and appreciate the claims to which they ought to give effect; and for this purpose, no disorder of the mind must affect their ability to make decisions for themselves.

If a Will, rational on its face, is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding.

Disputes about the capacity of an elderly or seriously ill testator can be avoided or reduced when practitioners prepare a will, if they arrange for a medical practitioner to confirm that the testator has the requisite capacity and make a contemporaneous record of their examination and findings. This is known as the Golden Rule.

Lack of knowledge and approval

Before a Will is admitted to probate, the court must be satisfied that the testator knew and approved of its contents. There will be a presumption that the testator knew and approved of the contents of their Will if there was testamentary capacity and due execution. The court may require further evidence where the person who prepared the Will is to benefit.

If the testator had the Will read to them or its contents imparted in some other way, there will be a presumption of knowledge and approval.

Fraud or Forgery

There may be instances where there is concern that a Will has been altered or forged which would mean it has been created fraudulently. A common example of this could be that the signature at the end of the Will might appear different from that of the person who was supposed to have made it. Another example may be where a signature page is on a final and separate page in the Will, and therefore someone may have changed the previous pages of the Will without the testator knowing.

This ground is often the least argued and the hardest to prove.

Undue influence

To establish undue influence sufficient to invalidate a Will, it must be shown that the making of the Will was not a free and voluntary action and there was coercion. There is no presumption of undue influence. It must be established that actual undue influence occurred for it to be found invalid. It is for those challenging the will to produce sufficient evidence to satisfy the court.

Another example of undue influence is where there has been Fraudulent Calumny. This is where one beneficiary fraudulently poisons the testator’s mind against another beneficiary, who would otherwise be a natural beneficiary of the testator’s estate, by casting dishonest aspersions on their character. If this is found to be the case, the will is liable to be set aside.

Who can contest a Will?

A person contesting the validity of the Will should have a vested interest in it.

What are the time limits for contesting a Will?

If you wish to contest the validity of a will, there is technically no strict time limit to do this; however, it is still very important to act as quickly as possible as it can become more difficult to bring a claim if the estate assets have been distributed.

Although contesting a will after probate is possible, it is much more difficult, may take a lot longer and may well cost more. It is particularly important to seek professional guidance in this scenario.

How to contest a Will?

If you think the Will in question is not valid for one of the five reasons mentioned above, your solicitor may advise you to make a Larke v Nugus enquiry with the Solicitors who drafted the Will. This request will require you to ask questions as to the preparation of the Will and any concerns you have. The cost of this request, provided the executors act independently and reasonably, can come out of the estate.

You should speak to a solicitor on the best course of action.

How Pinney Talfourd can help

To get in contact with one of our Contentious Probate Solicitors, please email Rajinder Rai or phone our main reception on 01708 229 444 (Upminster Office) or 01277 211 755 (Brentwood Office).