Inheritance, Trusts and Will Disputes

Contesting a Will

 

There are several ways to challenge the validity of a Will including:

  1. Lack of Testamentary Capacity

This is where the testator did not have the required capacity to make a Will. Broadly, the test of capacity is whether:

  • The testator understood the nature of the Will and its effect
  • The testator understood the extent of the property that will pass via their Will
  • They are aware of the those who they may be expected to provide for and
  • They are free from any delusion of the mind

Often in these cases it is necessary to obtain the deceased’s medical records and seek an expert opinion on whether they had capacity at the time their Will was prepared and signed.

  1. Due Execution

A Will can be challenged on the basis it does not comply with the requirements of the Wills Act 1837. That act confirms a Will must be:

  • In writing
  • Be signed by the testator (or by some other person in their presence and direction)
  • Witnessed by two witnesses who must also sign the Will

This can be a common ground for challenging a homemade Will where the testator may not have had advice on the above requirements.

  1. Knowledge and Approval

For a Will to be valid the testator must have known of and approved the contents of it.  If there are circumstances which cast doubt over the testator’s knowledge then the Court may require positive proof that the testator knew and approved the Will.

  1. Undue Influence

This is where a testator has been unduly influenced to the extent it has impacted on their testamentary wishes. This extends beyond someone being merely influenced and requires actual evidence of coercion to the extent the testator’s original intention has been overpowered.

  1. Fraud/Forgery

It may be the case that a Will has been fraudulently signed or amended. In that instance the Will is not valid.

  1. Fraudulent Calumny

This is where someone has poisoned the testator’s mind by telling them lies/misrepresentation with the intention of influencing the Will. A typical example is someone telling lies about another family member so that they are left out of the Will.

In the event a Will challenge is successful, the Estate will fall to be administered under a previous Will, or, if there is no previous Will, then under the rules of intestacy.

Will challenges can be complex and it is important the necessary evidence is obtained to support your case, whether that be in pursuing or defending a Will challenge.