GROUNDS FOR CHALLENGING THE
VALIDITY OF A WILL
A will is a legal declaration by which a person, the testator, names one or more
persons to manage his estate and provides for the transfer of his property at
death. A will may also create a testamentary trust that is effective only after the death of the testator.
However, the validity of that Will can be challenged on any of the following grounds:-
• Lack of due execution
A Will must be in writing and signed by the testator (or signed by someone else in the testator’s presence and as instructed by the testator) in the presence of two witnesses, who must also sign the Will in the presence of the testator.
• Lack of testamentary intention
You would have to show that the testator had not intended to make a Will. It is usually clear on the face of the Will that it is designed to take effect as a Will so this ground is rarely used.
• Lack of testamentary capacity
The testator had to be capable at the time that the Will was executed of deciding to make a Will and deciding to leave his assets in the way set out in the Will. If he was unable to make that decision for himself because of an impairment of or disturbance in the functioning in his mind or brain (whether because of mental illness or because he was under the influence of alcohol, drugs or medication) he would not have had sufficient capacity to make a valid Will.
• Lack of knowledge and approval
If the testator had testamentary capacity and the Will has been duly executed the Court will presume that the testator knew and approved the contents of the Will – unless the circumstances surrounding the preparation of the Will cause the Court to be suspicious (e.g. because the main beneficiary under the Will prepared it).
• Undue influence
The burden of proof would be on you to show that the testator had been unduly influenced by a third party to make his Will in the terms that he had.
• Fraud or Forgery
The burden of proof would be on you to establish that a Will was forged (i.e. someone other than the testator signed the Will) or was made as a result of a fraudulent act (i.e. the testator was misled into making his Will on the terms he did).
• Revocation
If, after making his Will, the testator destroys the original, makes a later Will or marries, that Will will have been revoked and will not be valid.
Importance of Evidence
In the case of any challenge to the validity of a Will the key witness – the testator – will obviously not be available to give evidence. Accordingly, obtaining evidence from other sources (e.g. others’ recollections; documents etc) is crucial. If a solicitor drafted the Will, asking to see their file is a good starting point.
Time Limits for challenging a Will
There is no statutory time limit for claims to challenge a Will. However, in the event of inexcusable delay, a substantial
lapse of time (with knowledge of the potential claim), or acceptance of a benefit given under a Will, the Court could conclude that the claim should not be allowed to proceed.
What happens if the challenge is successful?
If the Will’s validity is successfully challenged the testator’s assets will be distributed in accordance with the testator’s previous valid Will or (if there is no previous valid Will) the intestacy rules.
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