- May 12, 2020
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The grounds for challenging a will
With the advent of the COVID-19 public health crisis it is expected that many more people either have, or will be, turning their minds to the drawing up of a will. It should be noted, however, that there are a number of strict requirements which must be met for a will to be valid. The needs of social distancing will require people, and solicitors, to think about their processes for arranging for a will to be signed and witnessed.
Despite any improvisation which may be required, as things currently stand there has not been any change or relaxation in the rules and standards which are required to the observed when executing a will. Equally, it is not expected that there will be any softening by the courts in their expectation that formalities have been adhered to. My colleague, Ryan Taylor, looks at will signing during the lockdown in his separate blog.
The grounds in which a will can be challenged are:
- Lack of proper formalities;
- Lack of capacity;
- Lack of knowledge and approval;
- Fraud an undue influence; and
- Subsequent revocation.
In terms of the formalities for the preparation of a will, these rules have remained little changed for over 180 years, having been set out under the Wills Act 1837 (as subsequently amended). They are as follows:
- A will must be in writing and signed by the testator, or by some other person in the presence of the testator and at the testator’s direction.
- It must appear that the testator intended, by his signature, to give effect to the will.
- The signature of the testator, or acknowledged by him/her, must have been made in the presence of two or more witnesses present at the same time.
- Each witness must, in the presence of the testator (but not necessarily in the presence of any other witness), either:
- attest and sign the will; or
- acknowledge his/her signature.
Strangely, there is no formal requirement for a will to be dated, although this is sensible to avoid uncertainty, where there are several wills, as to which will is the last.
One of the most common grounds for challenging a will, other than that the above formalities have not been observed, is that the testator did not have testamentary capacity. Amongst other things, the testator must understand:
- that he/she are making a will;
- the extent of their property; and
- the effect of the gifts he/she is making.
Where there is reason for doubt as to a testator’s capacity, there may be less scope for a challenge to the will if:
- a medical practitioner has witnessed the signing of the will and/or given an opinion as to the testator’s capacity; and/or
- the testator discussed with his/her solicitor any previous testamentary dispositions and the reason for changing them; and/or
- the testator’s solicitor has been careful to take instructions from the testator in the absence of the principal beneficiaries or persons who might exert influence over the testator.
Lack of knowledge or approval can concern situations where a testator has capacity but there is a reason to question whether the testator had actual knowledge of the contents of the will, or whether he/she approved its contents. Examples can be where a testator is deaf, blind, or simply very frail. Equally, problems can arise there are language barriers. Those seeking to prove the validity of the will may need to show how the contents of the will had been made clear to the testator before the will was executed.
As a ground for challenging a will, undue influence or fraud is much more difficult to prove. Undue influence requires coercion of the testator; namely something more than mere persuasion. Fraud can involve the making of false statements to the testator to induce them to favour one individual and/or exclude another.
The only other ground on which a will can be challenged is if it has been revoked. Revocation of a will occur where a will is destroyed, or where a later will or codicil is prepared, or where the testator subsequently remarries or his/her marriage is dissolved or annulled. A subsequent marriage may not revoke a will where the will was prepared in expectation of the marriage taking place, in particular if the will contains a clause providing that the will should not be revoked by an anticipated marriage. There are similar provisions for Civil Partnerships.
If you require any advice on any of the issues raised in this blog, please contact us on 020 7940 4060 or Oliver.Jackson@anthonygold.co.uk.
*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.*