Although you take every care to make sure your Will is correct legally and according to your wishes, there is always the possibility that someone will claim that your Will is not valid. According to the laws of England & Wales, a Will can only be challenged on the basis that it is invalid by relying on one or more of the following grounds:
1. The Will has not been correctly executed.
- The person making the Will must have testamentary capacity i.e. be over 18 years of age and of sound mind;
- The person making the Will must do so voluntarily, without undue influence and must know what the will says;
- The Will must be in writing; and
- The Will must be signed by the person making the Will in the presence of two witnesses and then be signed by the two witnesses, in the presence of the person making the will, after s/he has signed.
2. The testator lacked the necessary mental capacity. An individual will be considered to have sufficient mental capacity to make a Will if he understands the following:
- The nature of the act of making a Will and its effect, i.e. that he is setting out to whom he wishes his property to pass on his death;
- The extent of his property; and
- The individuals for whom he is morally bound to provide and the consequences of not providing for such individuals.
If a Will appears rational, it is presumed that the testator had mental capacity and the Will would be admitted to probate, unless anyone can produce sufficient evidence to the contrary.
3. The testator lacked knowledge or approval of the contents of their Will. These claims arise when the circumstances surrounding the making of a Will seem suspicious. A testator must have knowledge and approval of the contents of a Will in order for it to be valid. The onus is on the defender of the Will to prove this. Claims of this type are particularly common in respect of homemade wills.
4. The testator was subject to undue influence. If you suspect that the testator has done something that they might not have done had it not been for the influence of another (usually the main beneficiary under the Will) a claim under this ground may arise. Effectively, the testator has succumbed to the manipulative behaviour of another. In order to succeed, the challenger must be able to show that the testator was coerced into making the Will.
5. The Will is forged/fraudulent. The Will might have been prepared by a beneficiary who forged the signature of the testator either before or after their death. In these types of claim, a handwriting expert would normally be instructed. A Will could be fraudulent if the testator has left someone out that would otherwise have benefited on the basis of misrepresentations made by another person. Alternatively, whoever drafted the Will on behalf of the deceased could have left a large portion of the estate to himself without the deceased knowing.
Challenging a Will can be very costly if the claim fails. Two factors should be carefully considered: the potential gain if a claim succeeds and the potential cost if a claim fails.
The grounds for Challenging a Will in other countries will vary.
Excelsior is available to help you with these difficult decisions and we welcome any queries or concerns you may have. Feel free to contact us.
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