Have you been surprised by a loved one’s Will? Sadly, we come across many cases where clients believe the contents of a loved one’s Will does not reflect their true wishes. Sometimes, grounds exist to challenge the validity of a Will.
Before deciding to challenge a Will, it is important to consider whether there is an earlier Will.
Generally speaking, a Will can be challenged for a number of reasons:
A. The person making the Will (the testator) did not have mental capacity by reference to sections 1 to 3 of the Mental Capacity Act 2005. In essence, at the time the Will was made, the testator had an impairment of, or disturbance in the functioning of his/her mind or brain. In these cases, it is important to obtain the testator’s medical records and the opinion of a suitable medical expert.
For Wills made before 1 April 2007, a different legal test applies.
B. The testator did not understand or approve the contents of his/her Will. For example, the testator was visually impaired, had low levels of literacy, had a hearing impairment or had difficulty communicating. It may also be possible to launch a challenge if the testator was frail, unwell or simply vulnerable, particularly where the terms of the Will are complex or unusual or where it is alleged that someone else signed the Will on behalf of the testator.
C. Forgery or fraud – if the testator’s Will has been forged it will be invalid. Forgery can be proved by obtaining an opinion from a handwriting expert who will need to see samples of the testator’s actual writing and signature.
Less common, a Will can be invalidated on grounds of fraud or deception, for example where it was made by a person impersonating the testator.
D. Rectification – where the will writer makes a mistake when drafting the Will or fails to understand the testator’s instructions, the Will can be rectified to give effect to the true intentions of the testator.
Sometimes the person who drafted the Will may have understood the testator’s instructions but failed to apply the law correctly. If this is the case, the Will remains valid but there may be a claim against the will writer for professional negligence.
E. Undue Influence – this occurs where the testator acts against his/her own wishes and has been forced into making a Will that the testator did not wish to make.
F. Inheritance (Provision for Family and Dependants) Act 1975 claims – certain eligible persons who have been left out of a Will may be entitled to bring a claim under this statute for reasonable financial provision to be made for them out of the deceased’s estate.
Time limits – Different time limits apply to different claims some of which require the person considering making a claim to act quickly once a grant of probate has been issued.
Please contact us if you would like to have further information.
Disclaimer: Anything posted in this blog is for general information only and is not intended to provide legal advice on any general or specific matter.
