When a loved one dies, it can be difficult enough coping with the emotional and financial consequences of their death, without having to worry about either; defending a challenge brought against their will or mounting a challenge yourself.
At The Burnside Partnership we can help with either bringing or defending such claims, with the assistance of specialist lawyers to ensure that the claim is dealt with as quickly and efficiently as possible. We pride ourselves on our ability to explain matters in straightforward terms and using understandable language to assist you in resolving claims as quickly and cost effectively as possible.
We have set out further detail of how a person’s will can be challenged after their death and are always happy to have an initial discussion if you are facing or considering making such a challenge.
A will can be challenged on the grounds that the person making it (the testator) lacked capacity (mental ability) to make the will.
The test for capacity to make a will is set out in the historic case of Banks v Goodfellow . It is known as a 4 limb test;
1. Understand they were making a will and its effects.
2. Understand the extent of the property they are are disposing.
3. Appreciate the claims against their estate.
4. (in relation to point 3) Not be subject to any disorder or delusion which acted to bring about a disposal which the Deceased would not otherwise have made.
Point number 1 is usually quite easy to either establish or dismiss. In regards, to the extent of their property, whilst they do not need to recall every specific item in their estate or the total value of their estate, they do need to have an understanding of the size and nature of their estate. They need to understand and be aware of family members and others who might have a claim against their estate and in relation to this not be subject to any delusion or disorder which might have caused them to change their mind such as a misunderstanding or irrational belief.
It is for the person making the allegation of invalidity to prove that the testator lacked capacity.
Lack of Knowledge and Approval
A person making a will must know and approve of the contents of his/her will. Where the will is long and complicated and the testator was weak, infirm or afflicted by some other disorder which would have made it difficult for him/her to comprehend the contents of the will then this challenge can be raised.
It is for the person making the allegations to prove them. However, where a person, instrumental in the preparation of the will, inherits under the will, the court regards this as suspicious and it is for that person to demonstrate otherwise.
Where a solicitor prepares the will and it is read back to the testator then it can be difficult to prove a lack of knowledge and approval.
If a person has taken advantage of a weak and infirm person and coerced them into making a will then this may constitute undue influence.
Alternatively, where one family member has poisoned the testator’s mind against another family member with the aim of excluding them from the will, this can also constitute undue influence.
Influence in itself is not enough to set aside a will, in order for it to be considered to be ‘undue influence’, it must be coupled with a degree of coercion or force.
Where a person is arguing that the testator’s mind has been poisoned by another then this can be more of a gradual process and has been likened to a drip drip effect over many years.
Lack of Compliance with Formalities
A will must comply with the requirements of the Wills Act 1837 and where it does not then it will not be valid.
In other words it must;
1. Be in writing,
2. Be intended to be a will,
3. Be signed by the testator,
4. Be witnessed by two witnesses who were present at the same time as the testator.
The testator needs to have intended to make a will and when signing it, intended to sign his/her will. Where someone has obtained the signature by fraud or forged the signature themselves then they will be guilty of fraud.
An allegation of fraud needs to be supported with strong evidence as it is a serious allegation. It is for the person raising the argument of fraud/forgery to prove the will has been forged.
In any of the above are proven then the will is not valid and the estate will either pass according to an earlier will or if there is none then under the rules of intestacy. Before challenging a will, it is therefore important to check whether the person challenging inherits if the challenge is successful.