What are the grounds to dispute a will?
In England and Wales, individuals have the freedom to dispose of their estate to whomever they choose by preparing and signing a will reflecting their wishes. It is possible to challenge the validity of a will where there are doubts as to whether the will accurately reflects the wishes of the testator (the person making the will).
The grounds for contesting the validity of a will are listed below and in this guide we will outline the key considerations for each and what actions to take if you are concerned a will is invalid.
- Lack of formal validity – the will has not been prepared and signed in accordance with legal requirements.
- Lack of testamentary capacity – the testator did not have the requisite mental ability to make their will.
- Lack of knowledge and approval – the testator has signed their will but they did not know and approve of its terms.
- Undue influence – the testator was under extreme pressure from another person to make a will or include certain terms in their will.
- Forgery and fraud – the will has been forged or there is evidence of some other form of dishonest conduct.
If a will does not reflect a testator's wishes due to an administrative error (e.g. a missing page) or a failure on the part of the will drafter to understand the testator's intentions, it may be appropriate to apply to the Court for permission to rectify the will, rather than dispute its validity.
The grounds for contesting a will:
Lack of formal validity
If there are any doubts as to the formal validity of the will, it will be necessary to obtain statements from the witnesses to the will. If that is not possible, it will be necessary to look at surrounding evidence of the will making procedure, including any file retained by the will drafter.
The below guidance needs to be adhered to for a will to be valid:
- A will must be in writing and signed by the testator (or by someone else in the testator’s presence and at their direction).
- The testator must sign in the presence of two or more independent witnesses who must then sign or acknowledge the testator’s signature in the presence of the testator.
- To be a valid will, the testator must be over 18.
- The witnesses to the will must also be 18 and independent. If a witness to the will receives a gift in the will, this gift will be invalidated.
Lack of testamentary capacity
A testator must have the requisite mental capacity to make a will and this is known as ‘testamentary capacity’. The testator’s mind must not be affected by any disorder or delusion which may bring about a disposal that they would not otherwise have made. Testamentary capacity is not a test of memory, it is about the ability to make decisions and the potential to understand.
To have testamentary capacity a testator must be capable of understanding:
- That they are making a will and its effect.
- The extent of their property.
- Possible claims on their estate, for example their ability to comprehend and appreciate loved ones who might expect to benefit.
Lack of knowledge and approval
A testator must know and approve the contents of their will. They must know what is in the document and that by signing the will they are confirming that it reflects their wishes.
There is a presumption that when a will has been validly executed, the testator knew and approved of the contents. However, when circumstances arise which ‘excite suspicion’, evidence is needed to show that the testator did indeed know and approve the contents of their will. Suspicious circumstances could include a beneficiary of the will being involved in preparing it.
When a testator is deaf and/or dumb, cannot speak or write, is blind or illiterate, or the will is signed by another person at the testator’s direction, further evidence will be needed to prove that the deceased knew and approved the contents of the will.
Evidence could include an attendance note by the solicitor who prepared the will detailing that the will was read over to the testator before it was signed, although we would caution that this is not always conclusive.
If undue influence is asserted in relation to a will, it will be for the person making the claim to provide evidence that influence has been exercised by either coercion or fraud. Coercion is more than mere persuasion. It is a pressure that is applied to the testator to overpower their will. This can involve a wide variety of conduct, from physical bullying to simply talking to someone who is seriously ill.
Whether or not a claim can be proved will depend in part on the physical and mental health of the testator and how much pressure would be necessary to exercise undue influence. A testator in weak health may be more easily coerced.
It can be a difficult claim to bring because much relies on the testator’s circumstances.
Fraud, including forgery
In a probate context, the most common forms of fraud are forgery and fraudulent calumny. The underlying principle is dishonesty and whether an honest person would do the same in the circumstances.
- Forgery includes forging a testator’s signature on a will, impersonating a testator or producing a false will knowing it to be invalid or not the last will. There are specialist handwriting and document experts who can provide an opinion on possible forged documents.
- Fraudulent calumny is a type of undue influence which involves someone making false representations about a third party to a testator, which in turn means the testator chooses not to benefit that third party.
Practical steps to take if you are concerned a will is invalid
If you are concerned that a will is invalid then you should ensure you follow the below steps:
- Put the executors on notice of a potential claim and request that they do not distribute the estate.
- If a Grant of Probate has not been issued, enter a caveat at the District Probate Registry to prevent a Grant from being issued.
- If the will is professionally drafted, request the will drafting file from the solicitor via a Larke v. Nugus request.
- Obtain the deceased's medical records and witness evidence to ascertain whether a claim has merit.
- Seek independent legal advice.
How can we help?
Our team are well placed to help you if you believe a will is invalid. We can have an initial complimentary telephone call with you to provide you with some headline guidance, identify limitation periods and advise on protective steps as well as discuss funding options with you. We are then able to offer a fixed fee to undertake the steps we have recommended to you.
Get in touch with one of our team below if you have any questions or would like to seek advice.