The Main Grounds For Contesting A Will
When it comes to contesting a will, there are a number of reasons available and here are the main grounds for contesting a will:
- A lack of testamentary capacity
- A lack of valid execution
- A lack of knowledge and approval
- Undue influence
- Fraudulent or forged will
- Construction and rectification claims
A lack of testamentary capacity
A person making a will has to be of sound mind and a legal test dating back to 1870 (Banks v Goodfellow) states that for a will to be deemed as valid, a person must:
- Understand they are creating a will and the impact of that will
- Understand the value and nature of their estate
- Be aware of the impact of including or excluding people from the will
- Not suffer from any incapacity or disorder of the mind which may impact on the will they create
The law has evolved since this ruling but the key aims remain in place.
A lack of valid execution
For a will to be valid, it has to meet the following requirements:
- To have been signed by the person making the will and that they intend for the will to be adhered to
- For two witnesses (at least) to be present for the signature of the will
- For the witnesses to have signed or attested that the signature was valid
A lack of knowledge and approval
In legal circles, it is assumed that the will has been executed in a legal manner unless there is evidence to suggest that this is not the case. There is also the fact that the person creating the will should be aware of the contents of the will, and they should have approved of the content.
This is an area that people will content a will and if it is possible to prove that the person creating the will was unaware of its content, or that suspicious circumstances impacted on the creation of the will, the courts are likely to allow the will to be contested.
The law will not automatically assume that a person deemed to be in a position of trust who has received assets has done so because of undue influence. There is therefore a need for someone to prove that “actual undue influence” has taken place. Although recent cases indicate that courts are willing to hear and accept arguments where it can be show that undue influence has taken place.
If you believe that a person has made a will as a result of significant coercion by another person or you are facing such a claim, our will dispute solicitors can help. We have a proven track record in cases of this nature.
Fraudulent or forged will
There are many ways that wills can be constructed in a fraudulent or forged manner, including one party telling the person creating the will lies or false stories to influence the decisions they make for their will. Again, there is a need to prove that a will has been forged or fraudulently created but recent cases indicate that courts are willing to hear and accept claims of this nature that can be backed up.
Construction and rectification claims
Another way in which wills can be contested comes with a construction claim and this commonly associated when wills are worded in an ambiguous or unclear manner. In claims of this nature, a court will be asked to decide on the meaning of the words utilised in the will.