Disputing A Will
The grounds for disputing a Will
There are limited grounds upon which a Will can be set aside and these are as follows:
1. Lack of testamentary capacity
A person must be of sound mind to lawfully execute a valid Will.
The test of testamentary capacity is that set out in the case of Banks v Goodfellow. The for purpose of making a Will is that:
- At the time of making the Will the person must understand the nature of the act i.e. that they are giving instructions for a Will which will deal with the disposal of their Estate upon their death.
- They know the extent of their property that they are intending to dispose of.
- Have regard to or consider those people to which they ought to have regard e.g. family members, partners etc.
- In addition, they must not have been subject to any disorder of the mind that should poison their affections, pervert their sense of right, or prevent the exercise of their natural faculties. In other words, they must not have been suffering from any insane delusion.
2. Lack of knowledge and approval
When making their Will the Testator must be aware of the Will contents and approve its terms. If you suspect the Testator was not of sound mind at the time they made their Will, it is likely that they could be said also to lack knowledge and approval. However, there are also circumstances if the threshold of lack of testamentary capacity is not met, but, nevertheless the Testator may still lack the necessary knowledge and approval. An example may be where the person who helped draft the Will stands to benefit from a substantial gift in the Will which they would not ordinarily be expected to benefit. In circumstances which excite the suspicion of the Court the burden is on the person seeking to prove the Will to satisfy the Court that it was validly made.
3. Incorrect execution of the Will
In order for a Will to be correctly executed under Section 9 of the Wills Act 1837, it must meet the following requirements:
- The Will must be in writing.
- It must be signed by the Testator or somebody else in the presence of the Testator, or by somebody else in the presence of the Testator after being directed to do so by the Testator.
- It must appear that the Testator intended to give effect to the Will by their signature.
- The Testator’s signature should be made in the presence of two witnesses.
- Each witness is required to either sign the Will and attest it, or acknowledge their signature in the presence of the Testator. However, it is not necessary to do so in the presence of the other witnesses.
In considering the execution of the Will it is essential to obtain statements from one or both of the attesting witnesses.
Additionally, there are strict rules as to who can or cannot witness a Will. If the Will is witnessed by a beneficiary it remains valid but the beneficiary will have forfeited his or her entitlement under the Will.
In certain circumstances, questions may arise as to whether the Will itself is a complete forgery or whether the signature on the Will is that of the Testator. In those circumstances evidence should be gathered from the witnesses to the Will and the employment of a handwriting expert as to the signature. In order to facilitate a report examples of the Deceased’s previous signatures and handwriting generally will be required for comparative purposes.
5. Undue influence
In order to prove undue influence, it is necessary to produce evidence to show that the Deceased was forced physically or mentally against their own volition to make a Will that they would otherwise not wish to make. Mere persuasion is not enough.
Very few cases succeed on this ground. This is especially the case if the Deceased gave independent instructions to a solicitor who was satisfied at the time that no undue influence was being asserted upon the Testator.
Strong evidence of influence is essential in these types of claims. This evidence may take many forms, but they include expressions by the Testator themselves that they did not wish to make the Will and were being felt obliged to do so or where there is testimony as to control exerted by the beneficiary i.e. physical violence, blackmail, isolation of the Testator from family and friends.
Linked to undue influence is the claim of fraudulent calumny. This occurs where someone has poisoned the Deceased’s mind against the natural beneficiaries of their Estate, by casting dishonest aspersions against that beneficiary, knowing the aspersions to be untrue or not caring whether they are true or false. A level of proof as above applies which makes them difficult to prove.
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Disputing a Will can be a daunting experience, our experienced team will be able to help you navigate this complex area of law. Talk to Tollers today, simply complete the form below and a member of our team will call you back.