Don't get stuck in checkmate when you challenge a will validity - consider these 5 points before challenging a will

A Reminder of the 5 Grounds to Challenge a Will

Challenging a will requires a valid reason to go to court. Different grounds will be relied upon in a will dispute, depending on the particular circumstances under which the will was made. If you are unhappy with the contents of a will and the circumstances in which it was made, a vital first step in any challenge will be to establish the grounds on which you will challenge the will. The main grounds for challenging the validity of a will are explained below.

  1. Undue Influence

A valid will must be a statement of the testator’s intentions as to what will happen to their property when they die. A will is therefore invalid if the will has been made by the testator but while they were under someone else’s influence or control. There are a number of examples in caselaw which illustrate the principles of undue influence, and behaviour that could amount to undue influence – but it will always depend on the specific circumstances of the particular will.

In Edwards v Edwards [2007] WTLR 1387 it was decided that there is no presumption of undue influence with regards to will disputes: the burden of proving undue influence is potentially higher for wills than other contracts. Claimants challenging a will on grounds of undue influence will have to prove that coercion has taken place and that this has affected the provisions in the will.

    1. Challenging a will for Lack of Testamentary Capacity

Lack of testamentary capacity arises when the testator of a will does not have the required level of knowledge and understanding to create a valid will. Challenging a will on grounds of lack of testamentary capacity is particularly common when the testator suffers from Alzheimer’s disease or dementia.

The test to decide whether a testator had the necessary capacity to create a valid will was set out in Banks v Goodfellow (1870-71) L.R. 11 Eq. 472:

  • The testator must understand that they are creating a will and the consequences of this decision;
  • The testator must have an idea of their property and its worth;
  • They must know who their dependants are, as well as anyone who is expecting to inherit from the will.
  1. Challenging a will for Lack of Knowledge or Approval

When a will is validly executed, there is a presumption of knowledge or approval – that is to say that the testator knows what is in the will and approves it. The presumption of knowledge or approval does not arise in circumstances where the testator suffered from certain physical disabilities such as visual impairments and paralysis.

In any case, a will can be challenged for lack of knowledge or approval if the circumstances are such that the court finds suspicious. Suspicious circumstances can include, for example, a sudden extreme change in the testator’s intentions and where the testator has not taken legal advice before making their will. This will cast doubt whether the individual knew and approved of what they were agreeing to when the will was signed.

  1. Rectification

Rectification occurs when there has been a clerical error in the will, or the draftsman has been negligent, such that the will does not reflect the intentions of the testator. If there is a mistake in the will, the court will rectify it, using evidence of the draftsman’s notes when the will was produced. There is a six-month time limit from the grant of probate to make a claim for rectification.

  1. Forgery or Fraud

The grounds of forgery and fraud arise in the situation where a fake will document has been produced, or where the testator’s signature has been forged. Such a will is invalid for obvious reasons. Challenging a will using allegations of fraud is more difficult than other grounds of a will dispute because there is a higher burden of proof.

The Inheritance (Provision for Family and Dependants) Act 1975

In addition to the grounds of disputing the validity of a will set out above, there is an additional remedy for disappointed beneficiaries considering challenging a will, in the Inheritance Act. The Act makes it possible for those who were financially dependant on a testator to apply to the courts for reasonable financial provision if this is not provided in the will.  This type of claim does not challenge the validity of the will, but asks the court to make reasonable financial provision out of the testator’s estate.

For more advice about challenging a will, including information about how we can represent you on a ‘no win no fee’ basis, please get in touch with our specialist will dispute lawyers.