Concerns about the validity of a will

There are numerous circumstances following the death of a loved one where concerns may arise in relation to the validity of a will prepared by them prior to their death, this may be due to a number of reasons whether this is concerns over the deceased’s mental capacity, the influence of others or an unusual gift in the division of their estate which goes against the deceased’s previously known wishes.  


It remains the case that it is not possible to challenge a will simply on the basis that you are not in agreement with its terms. This relates back to the well-established and respected concept of testamentary freedom which awards any person the freedom to leave their estate to whomever they wish for whatever reason they see fit. You must have a legal basis to make a claim of this nature with supporting evidence to substantiate the claims being made.  


It should be noted that with all grounds for validity challenges, there is an evidential burden of proof and this burden in relation to any challenge to the validity of a Will is on the person seeking to challenge the Will.  In other words, it must be shown that on balance, after full consideration of all the evidence available, that it is more likely than not (i.e. in percentage terms, there is a  51% or more chance) that the claim you are pursuing will be successful as the evidence is balanced in your favour.   


There are a number of claims that fall under the umbrella of a validity challenge, these are as follows; 


  • Undue Influence  
  • Lack of Testamentary Capacity  
  • Lack of Knowledge and Approval 
  • Lack of Formal Validity  
  • Fraudulent Calumny  
  • Forgery  


Each of the claims listed above have different requirements and approaches. It is important to note that these do not have to be standalone claims, it is possible in certain circumstances to make concurrent claims that are assessed in their totality. Validity challenges are highly evidence dependent and often require the consideration of witness evidence and medical evidence amongst other forms of evidence. 


As indicated above, with any validity claims, the evidential burden of proof is on the person making the claim to show that, on the balance of probabilities, any of the grounds above can be proven and that the will in question should be set aside in favour of a previous will or the rules of intestacy. 


The position differs slightly in respect of challenges to a will on the grounds of capacity and/or lack of knowledge and approval, in circumstances where evidence is suggestive of doubts concerning either grounds, the burden of proof will then switch to the persons defending the validity claim and seeking to propound the will, it will then become their obligation to satisfy the Court that the deceased in question did have capacity and did know and approve of the content of their will.   


A successful claim with regards to the validity of a will result in the deceased’s most recent will being declared invalid. If the deceased had a previous will,  this then takes effect and the estate will be distributed in accordance with the terms of the previous will, that is of course unless you are seeking to invalidate numerous wills. If the deceased did not have a will predating their most recent will, the estate will fall to the rules of intestacy and be distributed accordingly.  


It is very important to note that in making claims as to the validity of a will that the outcome can never be 100% guaranteed as it is highly dependent on the volume and strength of the available evidence.  


Please see the grounds for contesting a will and disappointed beneficiaries for further in-depth information with regards to the legal elements of each of the above claims and the work required. 


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