How can I contest the validity of a Will?
Will disputes can take many forms, including: arguments over the capacity of the person making the Will; whether they had knowledge and understanding of the document and its impact; and/or whether there had been undue influence by another person on the will maker (testator) forcing them to make the will in particular terms.
Another subject of dispute is the document itself – and whether it complies with the strict formalities that we have in England and Wales. These requirements are:
- That the Will is in writing;
- It is made by a person over 18 years of age;
- It is signed by the testator, or signed on their behalf under directions of the testator and in their presence;
- The testator intended to give effect to the Will; and
- The testator signed in the presence of two witnesses who also signed in the presence of the testator.
If any of these requirements are not met, then that may be grounds for the Will to be declared invalid. An earlier Will may then come into effect, or the estate may be subject to the intestacy rules (which set out how estates are distributed when there is no Will).
Disputing the Will document itself is not always an easy task. The Court will usually presume that a Will has met the formalities, unless there is an obvious failure to do so. If the Will appears to have the testator’s signature and two witness signatures on it, then a judge will usually presume that the Will is valid. It will take strong evidence to overturn this presumption.
Disputing the validity of the Will often requires evidence of failure on more than one of the formalities, or undeniable evidence that the Will was not made by the testator. Evidence of the testator being unable to sign, or that the contents of the Will would not have been what they intended, or that witnesses were not present can all assist in getting the Will declared invalid.
Although the Courts prefer to approve Wills where possible, the formalities in England and Wales are a high standard. So if you have doubt over the signature, intention or witnessing it is worthwhile getting specialist advice to see if the Will should be contested.
*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*