There are a variety of ways in which the validity of a Will can be challenged, however it is important to bear in mind that a Court cannot change the terms of an invalid Will to reflect what it thinks is fair (and nor is unfairness a reason to state a Will is not valid).
Instead, if the Will is held to be invalid, then the Estate will be administered in accordance with the next most recent valid Will. If there is no valid Will, the intestacy rules will apply.
There are 4 main grounds for challenging the validity of a Will:
- Formalities & Due Execution
- Knowledge & Approval
- Undue Influence
Formalities & Due Execution
To be valid, a Will must be:
- in writing;
- signed by the person making the Will; and
- signed by two witnesses.
The court’s approach is that if a Will is in writing with all the correct names address and signatures there will be a strong presumption that Will has been validly executed. Case law suggests that very strong evidence (for example evidence from a handwriting expert) will be required to rebut this presumption.
If the person making a Will lacked capacity at the time of making that Will then it will be invalid. In broad terms, to have capacity at the time of making of the Will a person must:
- Know they are making a Will and what effect it has;
- Understand what property they have and who will be getting it;
- Appreciate and understand what steps they should be taking in relation to their estate; and
- not have a disorder of the mind
The lack of capacity can be temporary or permanent, but it must exist at the time the Will was created.
Usually, the best evidence is that of a medical professional at time of making the Will. As such there is a “golden rule” that in any situations where there might be doubt as to capacity a doctor should actually witness and approve the Will having made a medical examination and having recorded their findings. However, this does not always occur.
In general, claims in respect of lack capacity will require medical evidence to prove them.
Knowledge & Approval
For a Will to be valid, the person who made the Will must know and approve the contents. This tends to be an issue when the Will was drafted by someone other the person it was for (for instance a solicitor or family member) and has not been read by the person signing it.
If a person lacks capacity, then they are also likely to lack ‘knowledge & approval’, however a person can have capacity but not ‘knowledge & approval’.
Undue influence occurs when a person places inappropriate pressure on another such that what is detailed within the Will is not that person’s actual wishes. It is, in effect, coercion and can also include situations where there is a poisoning of the mind via false statements about another person.
It should be borne in mind that:
- There is no presumption of undue influence – it is for the person claiming it to prove it;
- Whether there is undue influence is a question of fact;
- It is necessary to show that the facts are inconsistent with any hypothesis other than undue influence;
- Coercion is greater than mere persuasion, although pressure which causes the person to succumb for sake of quiet life is enough to amount to coercion; and
- Physical & mental strength are factors – the will of a weak person may be more easily overborn than that of a hail and hearty one.
Claims of this nature can be hard to prove as it is necessary to provide evidence (beyond the terms of the Will itself) of the undue influence.
The key theme throughout the above methods of challenging the validity of a Will is that it is not about whether the Will itself is fair, but instead whether it is what was intended by that person at that time. This is because of the underlying principle that a person is entitled to distribute their estate however they wish.
There is 12 year period to make a claim to challenge a Will, however from a practical point of view it is best make any claim before the estate is administered to avoid having to claw back assets that have already been handed out.
Challenging the validity of a Will can be a difficult, time consuming and emotionally draining process. It is therefore best to obtain advise from a specialist solicitor from an early stage.
At RHL Solicitors, we’re here to help make your life easier when it comes to legal support, while providing you with an exceptionally high standard of care.
Our Bristol-based team don’t just try to reach a settlement for you; we help to resolve legal disputes and achieve the very best outcome by tailoring our advice to your own individual needs.
If you seek the advice and service of specialist legal experts with decades of experience, contact our Family Law team who will be more than happy to discuss your matter further.
RHL Solicitors will have no delays or waiting times in advising you on your situation and will be quick to get you the support and care you deserve.