Challenging the Validity of a Will
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A properly prepared Will protects your loved ones and family and minimises the financial worry during what can be an upsetting and stressful time. At OneLaw Chambers, our Wills, Trusts and Probate Solicitors and Barristers are here to help you plan for your family’s future.
Our Wills, Trusts and Probate Solicitors and Barristers can provide you with immediate advice upon a full range of wills, trusts and probate matters.
How to contest the validity of a will
You can contest the validity of the Will itself. If that claim succeeds, then the deceased person’s estate will pass either in accordance with a previous Will or in accordance with the rules of intestacy.
Unless the testator has privileged status he or she must be 18 or over. To make a valid will the:
- testator must have the mental capacity to make a will; and
- testator must have the requisite intention; and
- requirements of s.9 Wills Act 1837 must be complied with.
If any of these criteria are not met then the will is invalid.
Capacity
The validity of a will can be challenged if the testator (person making the will) did not have capacity.
The test for testamentary capacity is defined in the case law Banks v Goodfellow as ‘soundness of mind, memory and understanding’. This means that the testator must understand the:
- nature of his act (e.g. making a will) and its broad effect; and
- extent of his property; and
- moral claims he ought to consider (but there is no requirement to benefit any particular person or relative).
Testamentary capacity must exist at the time the will is executed. There is an exception to this rule as a result of Parker v Felgate; where a testator lacks capacity at the date of execution it is sufficient if:
- the testator had capacity when giving instructions for the will; and
- the will is prepared in accordance with those instructions; and
- at the time of executing the will, the testator understands he is executing a will for which he gave instructions.
Undue influence
The validity of a will can be challenged if the testator made the will under undue influence.
If a testator was coerced into making the will in particular terms that they did not want, then the gift obtained by undue influence is liable to be set aside. Successful claims for undue influence are more common in the case of someone who is vulnerable as a result of impaired mental capacity or otherwise failing health. This is a difficult claim to bring. Persuasion itself is not unlawful, so it needs to be shown that someone has overpowered the testator and caused them to make the Will they made. For example, the testator was threatened with violence if he or she did not give person x all the money in their bank account.
Formalities
A will must comply with s. 9 of the Wills Act 1837. If any of the execution requirements are not complied with the will is not valid. The requirements are as follows:
- The will is in writing, and signed by the testator, or by some other person in his or her presence and by his direction; and
- it appears that the testator intended by his or her signature to give effect to the will; and
- the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- each witness either—
- attests and signs the will; or
- acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness),
Why Instruct OneLaw Chambers for your Wills, Trusts and Probate Case?
At OneLaw Chambers, our Wills, Trusts and Probate Solicitors and Barristers regularly assist with many contentious and non-contentious wills, trusts and probate cases. We have assisted and represented many clients from all over the world achieving successful outcomes for them.
Our expert Wills, Trusts and Probate team of Solicitors and Barristers is one of the strongest multi-disciplinary and diverse teams in the country, covering the breadth of wills, probate, tax and trust work. We have considerable experience with high value estates and international wealth and understand the unique challenges this can present.
Our Wills, Trusts and Probate Solicitors and Barristers can help you protect your assets against future life changes such as divorce, manage your wealth and succession planning across multiple countries, and make sure your estate is structured as tax-efficiently as possible.
With our strong partnerships and affiliations with chartered tax advisors and financial planners, we have the capacity to deal with everything in-house and provide you with a complete solution.
We are committed to ensuring that our Wills, Trusts and Probate Solicitors and Barristers prepare every wills, trusts and probate case with utmost quality and skill so that successful outcome is achieved every time. Our Wills, Trusts and Probate Solicitors and Barristers operate in a friendly and cooperative manner to provide our clients with the best client care and service during the entire wills, trusts and probate case process.
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