We have set out a series of articles in respect of the thorny problem, of a disheartened beneficiary, contesting a will or seeking their inheritance which they believe they are entitled to.
In a previous article we dealt with what is commonly known as, making a claim that the will failed to make reasonable provisions under certain legislations.
There are other grounds for challenging a will.
What are the other grounds for challenging a Will?
The next category of challenges are, claims that the will is invalid for some reason.
There are generally three other main reasons why a will would be challenged. This is not an exhaustive list, and each will and the circumstances surrounding its drafting, and execution, should be examined very carefully if there are concerns;
The Will is invalidly signed.
The requirements for a valid Will are set out in, Section 9 of The Wills Act 1837, which are;
- It must be in writing.
- It must be signed by the testator, or signed on their behalf.
- The testator must sign or acknowledge their signature, in the presence of two witnesses.
- The witnesses must sign or acknowledge their signature, in the presence of the testator.
If these requirements are not met, then the Will will not be valid and will fail.
This is often based on the evidence that is provided at any given time.
The Testator Lacked Capacity at the time of making the Will.
The testator must have capacity at the time of making the will. They must also know and approve the contents of the will. The test for capacity to write a will is the case of ‘Banks v Goodfellow’ test (as amended). It must be shown that the testator;
- Understands the nature of making the Will, and its effect.
- Understands the extent of the property/assets.
- Understands and appreciates the moral claims that ought to give effect to i.e. who they might reasonably be expected to provide for.
- Is not suffering from any disorder of the mind that is ‘poisoning their affections’ and interfering in how they distribute their estate.
The Testator was Unduly Influenced.
Undue influence is defined as ‘influence by which a person is induced to act otherwise than by their own free will, or without adequate attention to the consequences’.
Effectively, this involves applying pressure on the testator, and making them do something by using force or threats, (including verbal threats) which takes away their ability to make decisions at their own free will.
Due to its nature, undue influence normally happens behind closed doors, and ordinarily by people who are in a position of trust.
‘Undue influence’ is a substantial topic on its own, and depends on any given circumstances in any given case, often of which is unique, and there are substantial cases that have come before the court, for them to determine whether this was used in the particular case.
As it can be very discreet, a claim of this sort can be very difficult to prove, as the court will need to reply on the evidence presented to them. Therefore, the only way it would be possible to illustrate any undue influence, is by the claimant evidencing that there is ‘no other reasonable explanation’ for the will being drafted as it is.
Unlike many other matters in respect of claims against wills, the ‘Onus of Proof’ i.e. the evidence is on the part of the claimant to prove, not for the executors to disprove.
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