If you believe that you have good grounds for challenging the validity of a will, you should take steps to assert your claim. Lately, the number of claims against wills has significantly increased for different reasons:
A person must be of sound mind when they make their will for it to be valid. This means that they must:
- Understand that they are making a will and the effect of that will
- Know the nature and value of their estate
- Understand the consequences of including and excluding certain people under their will
- Not be suffering from any 'disorder of mind' which may influence their views
Even if a person did not have testamentary capacity when they signed a will, the will may still be valid if they did have a capacity when they gave instructions for it.
A will is invalid if it fails to comply with one or more of the following formal requirements, namely:
- The will must be in writing and signed by the person whose will it is ("the testator"), or signed by someone else in their presence who has been directed to do so by them
- It must appear that the testator intended by their signature to give effect to the will
- The testator's signature must be made or acknowledged in the presence of at least two witnesses, present at the same time
- Each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness
A will is presumed to be valid if it has been validly executed and the above formalities appear to have been complied with.
A person making a will must know that they are signing it and approve of its contents for it to be valid. If a will appears valid on its face, then there will be a presumption that it is valid. The burden is then on the person alleging it is not to show that it was made in circumstances that are "suspicious", in which case, the burden will then shift to them to show that the person making it did not know or approve its contents.
Although there are no defined circumstances that a court will consider to be suspicious, the courts have found the following to be so:
- Where a solicitor was initially contacted by and/or instructed by a person other than the deceased
- Where a will was not prepared by an independent solicitor
- Where a will makes provisions that are very different from previous wills or expressed intentions, and where they cannot be explained by a change of a deceased’s social or family life
- Where the will demonstrates any features, expressions or dispositions which are out of character on the evidence
- Where the will was not read over to the deceased prior to their signing of it
- Where the deceased was suffering from some mental impairment (including confusion) albeit not sufficient to cause the incapacity
- Failure to provide a copy of the will to the deceased in draft and/ or after execution
- Failure to inform relatives of the death
- Failure to disclose the will when asked or within reasonable time after death
- Disposing of an estate contrary to undertakings not to do so
Such circumstances can be very wide but must have at least some connection to the preparation and the execution of the will for them to be relevant.
A will will not be valid if the person making it did so against their wishes as a result of the acts of others, e.g. excessive pressure, emotional blackmail or bullying.
There is no presumption of undue influence and it is a question of fact whether undue influence has affected the execution of a will. Although direct evidence of coercion is unusual and not always necessary in order to prove undue influence, the burden of proof is high and it falls on the person challenging the will to prove undue influence.
To succeed in such a claim, it is necessary to show that there was opportunity to influence the person making the will, that influence was exercised, that the way in which it was exercised was unacceptable, and that it caused the person to make the will in the terms that they did.
The physical and mental strength of the person making the will are relevant factors in determining how much pressure would have been necessary in order to overpower the wishes of the person who made the will.
Even if there is insufficient evidence to prove undue influence, it may still support a claim that the will is not valid because the person making it did not know of or approve of its contents.
A will will not be valid if the signature on the will of the person who made is not theirs.
A court will require very strong evidence, often including handwriting expert evidence, that the signature is a forgery.
Nowadays people are generally familiar with their rights, such as the grounds for contesting a will. Otherwise, they can always do a quick search online and get all the information instantly. As well as the “tech age” we are living in, there is also a huge increased of the property prices and an evolution of the “typical family structure” that might lead into more contentious issues.
These mean that whereas years’ ago disappointed beneficiaries would simply shrug their shoulders and accept whatever they were left in a will; today, they are less likely to stay silent.
At Amphlett Lissimore, we have the practical knowledge and professional expertise to advise in resolving claims proactively and effectively. Our customers are always confident we are alert to the issues that can arise – and the support you receive will always take into account the specifics of your case as we tailor our service so that we can offer the very best advice to you.