Posted: Monday, 2 December 2019 @ 15:36
For those of us presented with a situation in which a loved one has died and
the will has emerged but that inheritance is not as it should be for you what are your options?
Do you accept the position or can you
challenge it?
And dealing with actually contesting the will what is the
best way to approach this?
Before we answer this question the best way to answer that question
is to in fact reverse the question and ask what does it take to make a will
valid.
For a will to be
valid you refer to the law which
says that a will must be: in writing, signed by the testator and the testator must intend when signing the will for it to
be valid and the testator’s signature must be acknowledged in the presence of
at least two witnesses.
Process is Panacea
Wills are process driven and fundamentally If the will has been
properly executed, the presumption is that it is valid, unless one of the
concerns set out below arises.
Now that we have that out of the way this then leads us to
upon what grounds can I contest a Will?
For our purposes there are five ways to contest the validity of a will and in order
to see if one will be successsful challenging the will you need to identify
which one is the best ground and then establish the evidence in support.
The grounds to challenge are: lack of testamentary capacity; lack of valid execution; lack of knowledge and approval; undue influence and forgery.
Irrespective of which ever ground you are looking at you
need to look at the evidence as a whole and any competent lawyer will be asking
some searching questions including ·
- Was the will changed prior to the last one?
·
- Did the deceased have professional advice in
preparing the will?
- Is there anything unusual about the
circumstances of the will being done?
·
- Did anyone new on the scene benefit from the
latter will?
- What was the deceased’s medical condition at the
time of preparing the will?
Dealing with these grounds in turn:
Lack of Testamentary
Capacity
For a person to make a valid will they must be of sound
mind. The legal test says that, for a will to be valid, a person 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; and,
not be suffering from any ‘disorder of mind’ which may
influence their views.
Lack of Valid Execution
In a claim for lack of valid execution, also known as ‘lack
of due execution’, a will is invalid if it fails to meet one or more of the
following requirements (as set out in s.9 Wills Act 1837):
The legal presumption is that a will has been validly
executed unless there is evidence to the contrary such as doubts over any of
the above factors.
There are also strict rules about who can and cannot witness
a will.
Lack of Knowledge And Approval.
Where a will has been executed correctly (i.e. the testator has signed the will in the presence of two witnesses who have also signed the will) and the testator had the necessary testamentary capacity, knowledge and approval will be presumed.
However, there are certain circumstances, where doubt has been raised where it must be proved that the testator had the necessary knowledge to understand the content of their will and that they approved the content.
Undue Influence
To prove that a person was unduly influenced, coerced or
under duress when making a will you must show 'actual undue influence'.The evidence needed to prove undue influence must be of a
high standard, to the extent that there is no other reasonable theory to
explain the terms of the will.
This is easier said than done.
Forgery
You are able to contest a will if you believe it was forged
or fraud has taken place.
This is a serious allegation and has a high standard of
legal proof. You will need handwriting expertise to back this up.
Are There Time Limits?
Most claims against personal estate of a deceased person may
be brought up until the expiration of 12 years from the date of death. However,
this is not always the case, and there are exceptions.
Do You Need A Solicitor?
However, each case is unique, and advisors should obtain a
good grasp of the character of the deceased, the nature of family relations,
any testamentary intentions of the deceased (as expressed to friends, family or
third parties) and to consider this against the contemporaneous evidence
available. An informed decision can then be made whether to contest a will and
if so, on what basis.
Be Careful What You Wish For
Success is Not Everything
But it’s not a decision to be taken lightly. It’s imperative
to consider whether a successful claim would actually produce a better result
than the existing will.
For example, if there is no earlier will, the rules of
intestacy will apply. But if there is an earlier, unchallenged will, the terms
of that document will take effect.
Here are the requirements of a valid will, and a summary of
the main ways in which a will may be challenged.