By Sangita Manek, a partner in the Dispute Resolution team at Blaser Mills Law

A person’s last Will and testament is a legally binding document that should reflect their true wishes by outlining what should be done with their estate following their death.

If someone you are close to dies and their Will does not appear to match up with what you know they would have wanted, it is worth investigating whether there might be grounds to challenge its validity.

Contesting a Will can be time-consuming and stressful if you are unfamiliar with the process, and you should investigate the validity of a Will before it is admitted to probate.

That does not mean that you cannot challenge a Will after a grant of probate has been obtained. However, the process becomes harder and there is always a risk that the estate may be distributed.

Here are some of the main things to be aware of before taking action.

Lodging a caveat

If you believe a Will is invalid, you should first consider lodging a caveat at the Probate Registry. This will prevent a grant of probate – the document that gives an executor the power to start administering a Will – from being issued.

It is important to act quickly and seek advice when lodging a caveat, as challenging the validity of a Will becomes even harder once a grant of probate has been issued.

Lodging a caveat gives you time to investigate the circumstances under which the person’s last Will was prepared, which could prove invaluable if you are to bring a successful case forward.

Do bear in mind you must have a sufficient interest in the estate to challenge a person’s Will.

Lack of due execution

To be valid, a Will must meet several requirements detailed by section 9 of the Wills Act 1837.

The basic requirements for a valid Will are that the testator must have the capacity to make a Will, have the intention to make a Will and comply with the prescribed formalities.

The prescribed formalities include that the Will must be in writing, signed by the testator or by some other person in their presence and by their direction, and give the appearance that the testator intended by their signature to give effect to the Will.

Furthermore, the Will must include a signature made or acknowledged by the testator in the presence of two or more witnesses present at the same time.

Each witness must attest and sign the Will or acknowledge their signature in the presence of the testator – but not necessarily in that of any other witness.

If you have evidence showing that one or more of these conditions has not been met, you can formally bring the Will’s validity into question.

Lack of testamentary capacity

A person must have been of a ‘sound mind’ at the time of creating their Will in order for it to be deemed valid, so another ground for contesting a Will is if you believe the testator lacked ‘testamentary capacity’ when producing it.

The requirements of testamentary capacity are that the testator understood they were making a Will and what its effect would be, knew the extent, value and nature of their estate, and comprehended the consequences of including and excluding certain people from their Will.

An example of lack of testamentary capacity would be where the testator had been suffering from any ‘disorder of the mind’ – such as Alzheimer’s Disease or dementia.

If you believe the testator lacked the necessary testamentary capacity to make the Will, the burden of proof lies with you as the person propounding the Will to show that it is invalid.

It is important to consider that a court will only be concerned with the testator’s mental capacity at the time that they made the Will, rather than at any other point in their life, and that medical expertise on that point will be sought.

However, this evidence is usually limited in the sense that the expert is unlikely to have assessed the testator’s mental state when the Will was created, meaning they must base their assessment on the testator’s medical records and statements made about their condition at the relevant time.

For this reason, the evidence family and friends hold, as well as the witnesses to the Will, can often prove most relevant.

Making a “Larke v Nugus” request is a good way of examing how the Will came to be prepared.

This is a series of questions that can be asked of the solicitor who prepared a Will on a testator’s behalf about the circumstances surrounding that preparation.

Requests should be made in the form of a letter and can enquire about how long the Will writer knew the deceased, the form and nature of the instructions given to the Will writer, the circumstances in which the Will was executed, and any evidence as to the deceased’s health or capacity at the time of executing the Will.

A Larke v Nugus request can also ask whether there were any earlier Wills and if they were discussed when instructions were received, and whether the contents of the Will were understood by the deceased at the time of execution.

Undue influence     

Proof of undue influence can be relied upon as another ground for contesting the validity of a Will. This refers to situations whereby a testator may have been pressured or coerced into changing their Will by someone hoping to influence its contents in their own favour.

Finding direct evidence to support a claim of undue influence can be particularly difficult, given coercion is often done in private and without written correspondence. Each case is decided on its own facts which can vary enormously between cases.

While the burden of proving a Will is on the person propounding that Will, this burden is generally discharged by showing that the Will has been duly executed and that the testator had testamentary capacity.

Where undue influence is alleged by someone, they must then prove that a particular person was in a position to influence the testator, that person did influence the testator and that the influence was undue.

They must also show that the influence related to the disputed Will or some part of it

and it was by means of the exercise of that undue influence that the disputed Will came to be made

Fraud or forgery

In some cases, there may be reason to believe fraud has taken place in the creation of a Will, for example if the document in its entirety or the testator’s signature has been forged.

A Will could also be fraudulent if the testator has bequeathed part of their estate to someone on the basis of misrepresentations made by another person.

However, it is often very difficult to prove fraud, given the testator is usually the only first-hand witness and is obviously not capable of offering evidence following their death.

Though there is no time limit for contesting a suspected fraudulent Will, you should not delay in bringing a claim if you are confident you have sufficient evidence to support it.

As with some other grounds for contesting a Will, a high burden of proof lies with you as the person making a claim of fraud, so you should be absolutely sure if you are going to use this ground.

Conclusion

Though these are the most common grounds upon which Wills are contested, there are other instances in which a document’s validity can feasibly be challenged.

It is important that anyone who intends to contest a Will understands there are no guarantees they will be successful, but enlisting the support of a legal expert can make a considerable difference and give them the best possible chance of succeeding.