Challenging the Validity of a Will

Often individuals want to challenge the validity of a Will because they feel that it is unfair. However, a Will cannot be challenged on the basis of unfairness alone. A legal reason to challenge the validity of a Will is always required.

When is a Will invalid?

A Will might be invalid due to one of the following reasons:

• The Testator did not have the appropriate “testamentary capacity” when they made the Will. Essentially, this questions whether the Testator had the necessary legal and mental capacity to make or vary a Will
• Someone coerced the testator into making the Will. This is known as undue influence. Such cases often arise between husband and wife, or where children exert a lot of control over their parents as they grow older and more reliant on them
• The Testator did not know and approve the contents of the Will. Such cases often go hand in hand with testamentary claims, but they are different concepts. In its very basic form, having testamentary capacity means the Testator had the ability to understand the gifts he or she is making in the Will. Lack of knowledge and approval usually rests upon whether the Testator actually understood the gifts in the Will
• The Will was not signed properly according to the correct legal formalities. For example, it may not have been properly witnessed
• The Will is a forgery. In other words, whether the Will was not signed by the Testator, but by somebody else. Such cases are relatively unusual, but seem to be becoming more frequent in recent years

A key issue in such cases is whether the Will reflected the true wishes of the Deceased.

How can we help?

We can help advise individuals or charities whether they are acting as executors or beneficiaries to consider allegations that a Will is not valid, or advise on whether there might be valid claim to pursue.

Sometimes claims are made by relatives or dependants of the Deceased because they have not been adequately provided for in circumstances where the Deceased should have provided for them. Such claims are brought under the Inheritance (Family and Dependants) Act 1975. These claims do not seek to challenge the validity of the Will as such, but assert that the Deceased did not make “reasonable financial provision” for the claimant.

Please contact us to discuss whether you might have a case to pursue, or if you are a beneficiary or executor under a Will and someone else has intimated a claim.