Once someone passes away, there may be doubts regarding the circumstances or contents of their Will. If they successfully challenge the validity of that Will, the effect will be that it is invalid (void). If this happens, the last previously executed Will or (if the deceased did not execute any previous Wills) the rules of intestacy will come into effect.
The main ways in which someone can challenge the validity of a Will are:
Lack of proper formalities
Under the Wills Act of 1837, for a Will to be valid (or validly executed) it must be:
- in writing
- signed by the testator
- witnessed by two independent witnesses who are present at the same time that the testator signs the Will
Lack of knowledge and approval
A testator must know and approve the contents of his Will for it to be valid.
There will sometimes be suspicious circumstances which ‘excite the suspicion of the court’. Examples of this could include:
- someone who benefits under the Will is responsible for or involved in its preparation
- the testator is old and/or suffering from a mental or physical weakness and insufficient care has been taken to ensure that they fully understood the contents/effects of the Will
If the circumstances suggest that the testator did not properly understand or know what they were signing, then the court may find the Will is invalid.
Lack of testamentary capacity (commonly known as mental capacity)
A testator must have ‘testamentary capacity’ in order to validly execute a Will. Effectively, they must be of ‘sound mind’. If a court finds that this is not the case, the court will find that the Will is invalid.
The test for testamentary capacity can be found from the 1870 case of Banks v Goodfellow, which sets out that in order for a person to be deemed to have testamentary capacity, they must:
- Understand the nature of making a Will and its effects.
- Understand the extent of the property of which he is disposing.
- Be able to comprehend and appreciate the claims to which he ought to give effect.
- Have no “disorder of the mind that perverts his sense of right or prevents the exercise of his natural faculties in disposing of his property by Will”.
The above test requires the testator to have a certain level of understanding, which will vary according to the complexity of the Will itself, the extent of the testator’s assets and the claims the testator/their estate might face.
Whilst challengers are keen to pursue a claim of this nature, the evidence required is often difficult to obtain as the nature of undue influence is ‘behind closed doors’.
The court requires evidence that the testator executed the Will as a result of:
- the fear/pressure a third party placed on the testator; or
- the third party had such a level of influence over the testator that they were not making decisions of their own free will.
Fraud / Forgery
Fraud can include any dishonest behaviour from a third party in order to benefit in some way from the terms of a Will.
There are many examples of fraudulent activity which may lead to a finding from the court that the Will is invalid, such as:
- Forging the testator’s signature / the Will itself
- Misleading the testator into signing a document that they do not realise is a Will
- Destroying a Will without the testator’s knowledge
- Providing instructions to a solicitor or a professional Will drafter on behalf of the testator without their knowledge or approval (this can extend to pretending to be the testator)
There is also a ground which has not been widely accepted as a separate ground for challenging the validity of a Will, which involves fraudulent activity, called ‘fraudulent calumny’.
This involves a third party poisoning a testator’s mind by making “dishonest aspersions” about another person’s character where that person is / might expect to be a beneficiary under the testator’s Will.