Contesting the validity of a Will

A person executing a will must understand the nature of the will, understand the extent of their property, appreciate the potential claims that could be made against their estate, and have no disorder of the mind that severely affects their decision making when creating a will.

Medical records and the will file (if there is one) will be helpful here.

Due to the complexities of considering if someone had capacity when executing a will, it is important to seek specialist advice and guidance before making such a challenge.

For a will to be valid it must comply with certain formalities, including it must be:

• In writing
• Signed by the person making the will (or someone on their behalf if this is requested)
• Witnessed by 2 people who are present at the time of signing

If any of these elements are incorrect or missing, the will may not have been validly executed. If a will has not been executed properly, it may be set aside and a previous will would then stand (providing it was valid) or, the estate may pass under the rules of intestacy if there is no previous valid will.

If you have any concerns that a will may not comply with the above requirements, please contact a member of our team who can assist with any necessary investigations and provide advice on the execution of a will. 

Lack of knowledge and approval

This is where the person making the will did not know of or approve the contents of the will.

This differs from lack of testamentary capacity, as someone may have had the capacity to make a will, but may not have approved of the contents of the will actually made. This can occur when, for example, there is evidence that the testator was illiterate and there is no evidence the Will was read over to them.

There may be concerns that the person making the will was pressured or influenced by someone during the will making process to make a will that did not represent their true wishes for the distribution of their estate.

It must be shown that the will was drafted or changed in a way that was advantageous to the person suspected of influencing the testator as a direct result of that influence.

Very strong evidence of undue influence is required to be successful in such a claim. We do recommend that specialist advice is obtained if you have concerns about undue influence.

This is where someone uses false information (that they know to be false) about another beneficiary to make the testator change or make a will in a way that is less beneficial to them.

This is where a person makes or changes a will in someone’s name or forges the testators signature. This includes where someone instructs a will drafter pretending to be the testator.

Challenging a will on the grounds of fraud or forgery involves making serious allegations. It is therefore important that you seek specialist advice before making such a challenge to ensure that you have the necessary evidence. It is quite often that experts become necessary in such challenges in order to support any claim. For example, you may wish to instruct a handwriting expert to assist the court in determining whether the testator’s writing or signature has been forged.