Many people believe that a Will is absolute and in most cases this is true, but, of course, there are exceptions and we are seeing a rise in the number of Wills contested.
English law recognises the principle of ‘testamentary freedom’ which states that we all have the freedom to leave our assets, by our Wills, to whoever we wish.
In this blog we explore the signs to look out for when considering whether a Will is valid or whether it can still be contested.
Is the Will valid?
There are a number of grounds for contesting the validity of a Will and we will look at the five most common below:
1. Has the Will been properly executed?
The first ground to consider when reviewing the validity of a Will is whether it was executed (signed and witnessed correctly).
The requirements of executing a valid Will are set out in Section 9 of the Wills Act 1837.
- A Will must be made in writing and signed by the person making it (or in certain circumstances, by someone on their behalf).
- The person making the Will (the testator) must intend for the Will to be valid when they sign it.
- The testator’s signature must be acknowledged in the presence of at least two witnesses who must also sign the Will.
If any of these requirements are not met, then the Will was not properly executed and is not valid.
2. Does the testator have capacity to make a Will?
The test to establish whether or not someone has the capacity required to make a Will was set down in a case decided in 1870 (Banks v Goodfellow)
Broadly speaking a testator is required to be able to:
- Understand the nature and effect of making a Will
- Understand the extent of the property they are disposing of.
- Consider the claims of people they might be expected to name in their Will.
The testator should also have no mental disorder that could cause them to make a Will they would not otherwise have made.
If a testator does not satisfy all of these requirements at the time that they gave instructions for the Will, it is likely to be invalid.
3. Did the testator know and approve the contents of their Will?
In very general terms, this relates to whether the testator knew, understood and approved of the contents of the Will at the time they signed it.
4. Was the testator coerced into making the Will?
If a testator was coerced into making the Will in particular terms, that they did not want, then the gift obtained by undue influence is liable to be set aside. Undue Influence is very difficult to prove, and these types of claims are more common in the case of someone who is vulnerable as a result of impaired mental capacity or otherwise failing health.
Persuasion itself is not unlawful, so it needs to be shown that someone has overpowered the testator and caused them to make the Will that they have made.
5. Is the Will a Forgery?
A less common claim, but one to be aware of, is whether the testator and witness actually signed the Will. If they did not, the Will is not valid.
If he Will is not valid, then the testator’s estate will either pass in accordance with a previous Will or under the Intestacy rules.
5 May 2020
The views expressed in this blog do not in any way constitute advice and are specific to the date noted. As time passes the facts can change and readers should consult their adviser for up to date advice on any matters covered within the blog. Invest Southwest offers an initial review, which is free of charge, however long it takes. From this we will be able to confirm how we can help and give you an opportunity to decide if you would like us to. Thereafter, we will provide you with detailed recommendations and exact costs. Please note that we promise not to levy any kind of fee unless we can demonstrate a benefit to you.
