The bereavement of a loved one is tremendously painful and stressful. It can be all the more difficult when you believe you have the grounds to contesting their will. Or where there is an inheritance dispute. A person can leave their money and other assets to whoever they wish by making a will and in general, these wishes are upheld unless there are circumstances where their will does not reflect their true wishes and suspicion is raised as to the will’s validity leading to a will dispute, and therefore going on to challenging the will.
The deceased did not have sufficient mental capacity when the will was drawn up. At the time of drawing up their will, the testator / testatrix must be of “sound mind, memory and understanding.”
The person making the will must:
Medical evidence generally determines whether a person has sufficient mental capacity.
This is effectively where an individual has prevented the testator from exercising their will in the terms of their will. Many factors can influence the testator when deciding who to include in their will. Consideration of the evidence is necessary to determine whether mere persuasion exists or whether the influence amounts to coercion.
This relates to circumstances where the testator did not have the required knowledge to understand the contents of their will and/or they did not approve of its contents.
The will has been executed properly, the testator understood and approved the contents of the will. Unless suspicion is raised regarding the preparation of the will.
In this case it will be for the party who is arguing that the will is valid to produce evidence to counter the suspicion and/or convince the court that the testator had knowledge of the terms of their will and approved the content.
Proof will need to be shown that the testator had the required understanding and approval of the contents of the will if;
It is important to make thorough investigations as to the evidence for any claim challenging the validity of a will on the basis of a lack of knowledge and approval, as these cases can be difficult to prove given that the best evidence, i.e. that of the deceased, will not be available.
The Act refers to the requirements a will must comply with in order to be valid. The first requirement being that a person must be over 18 years when making and signing the will. The remaining requirements are as follows:
Ensuring a will is executed properly and is therefore valid, is the responsibility of the solicitor or will writer.
Forgery and fraud occur when an individual tricks a testator. This affects the terms of their will, or the testator was not involved in creating or signing their will.
Will fraud occurs when the testator is intentionally deceived for personal gain. Or to damage another individual from benefiting from their will.
Examples of forgery & fraud include:
Please see the grounds for contesting a will for further in-depth information with regards to the legal elements of each of the above claims and the work required.