Challenging the Validity of a Will
Challenging the Validity of a Will
October 25, 2023

The validity of a Will is essential for ensuring that a deceased person’s wishes are carried out as intended. There are however occasions where the validity of a Will can be disputed. This article explores the grounds for challenging the validity of a Will, providing insights into how these challenges can be put forward.

  • What is a Will?
  • Lack of Testamentary Capacity
  • Undue Influence
  • Lack of knowledge and approval
  • Revocation
  • Fraudulent Wills
  • Formalities and execution
  • FAQ’s
  • Making a claim

What is a Will?

A Will is a legal document that outlines your wishes regarding the distribution of your assets and property after your passing. It allows you to appoint executors who will manage your estate and nominate guardians for any minor children. See our previous article on writing a Will.

Grounds For Challenging a Will

Lack of testamentary capacity

A common ground for challenging a Will in the UK is an assertion that the person making the Will lacked Testamentary Capacity at the time of creation of the Will. Testamentary Capacity is a legal term used to describe a person’s mental capacity to create or alter a Will. Any person making or altering a Will must:

  • Understand the purpose of a Will and its effects.
  • Understand how an estate is divided after they die.
  • Comprehend the value of the estate and assets.
  • Not be suffering from a mental illness which impacts their ability to make decisions on their estate and its division.
  • Know those who might have a claim on their estate.

It is very important that the person making the Will is fully competent in all these areas. In challenging someone’s Testamentary Capacity, it must be proved that the person making the Will was incapable in any of the above criteria.

Undue Influence

Another reason the validity of a Will may be challenged is undue influence upon the Will maker. This can happen when someone has put enforced pressure on the person making the Will to make certain provisions in the Will contrary to their true wishes. Challenging on these grounds requires a high standard of evidence proving that a form of coercion or manipulation took place.

Find out more about making a claim of Undue Influence.

Lack of knowledge and approval

A valid Will must be signed by the testator (person who made the Will) in the presence of two witnesses who are also required to sign it. The ground for challenging in this case is associated with the person making the Will not knowing or approving of the content of the Will when signing, or perhaps not even knowing it was a Will at all. Fraud or misrepresentation are key indicators for lack of knowledge or approval.

Revocation

A more recent Will can be discovered, revoking the validity of a previous Will. Contesting this would mean proving that the Will maker didn’t properly or knowingly revoke the previous Will.

Fraudulent Wills

A forged Will itself or Will connected with fraud is invalid. Examples might include:

  • Fraud: a person uses incorrect information, defaming another beneficiary to persuade the Will maker to remove them from the Will.
  • Forgery: a person fakes a Will using someone else’s name and forging their signature.

Formalities and Execution

Wills in the UK must adhere to strict formalities. Failure to adhere to such formalities can result in a challenge of invalidity. Formalities include:

  • The Will is in writing.
  • The Will is signed by the person making the Will, or by someone on their behalf.
  • Two witnesses present when signing.
  • The Will maker signed with the intent to make it official.

A solicitor or Will writer is responsible for ensuring a Will is executed properly in order to make it valid. Challenging this process could bring a claim for professional negligence.

Click here to read our FAQ’s on contesting a Will.

Making a Claim – Contesting a Will Solicitor

Challenging the validity of a Will in the UK is a complex legal process that requires a high standard of evidence and legal expertise. Navigating the legal processes and complexities often requires the assistance of experienced quality solicitors who specialise in contested probate cases. To find out more about Will validity and probate, please visit this link or contact us on 0800 987 8800, email info@bmcf.co.uk. or fill in this contact form.

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