What are the grounds for contesting a Will?

contesting a will

 

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. 

What are the grounds to contesting a will?

 

Lacked Testamentary Capacity

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: 

  • Understand what they are doing and what effects those actions will have 
  • Understand the full extent of what they are distributing  
  • Be able to appreciate the effects of including or excluding people from their will 
  • Not have a ‘disorder of the mind’. 

Medical evidence generally determines whether a person has sufficient mental capacity.

 

 

Undue influence or coercion

 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. 

 

Lack of knowledge or approval

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;

  • Impaired hearing or speech
  • Physically incapacitated and unable to write
  • Blind, illiterate or need to be directed by another person to sign on their behalf

 

 

Here are some examples of potentially suspicious circumstances

 

  • The will is homemade and no professional advice has been sought. 
  • Spelling mistakes and/or uses language which would not have been used or understood by the testator. 
  • Contains untrue statements and/or contains features which are uncharacteristic for the testator. 
  • The will contains a radical change in dispositions made without a rational explanation and/or generally the dispositions cannot be rationally explained. 
  • The relationship of the beneficiary to the testator was not close. 
  • The witnesses to the will were not sufficiently independent. 
  • There is evidence of the beneficiary having acted dishonestly, suspiciously or against the interests of the testator and/or having played a central role in the making of the will. 
  • The testator behaved usually when the will was made
  • There is evidence generally of the testator’s mind failing but they retained testamentary capacity. 

 

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. 

 

 

Wills Act 1837

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: 

 

  • A will must be in writing an the person making the will must sign it. It can be handwritten, typewritten or printed in any form. Providing a will can be produced to the Probate Registry then any material can be used upon which to write the will.  
  • The testator must have signed it with the intention of creating a valid will. The signature of the testator is evidence of their intention.  
  • Two people must witness the testator’s signature and must either be present when the testator signs or, the witness must be told by the testator that it is their signature. As mentioned above, the witnesses must not be beneficiaries and their presence is merely to recognise the testator’s signature is indeed their signature. It is therefore, not necessary for the witnesses to acknowledge or read the contents of the will. 

Ensuring a will is executed properly and is therefore valid, is the responsibility of the solicitor or will writer.

 

 

Forgery & Fraud

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: 

  • impersonation of the testator by a fraudster to execute the will 
  • misleading the testator to sign a will when they believe the document to be another document 
  • a beneficiary making false representations to the testator about the character of a potential other beneficiary. To deceive the testator to leave more monies to the perpetrator of the false representation 
  • the destruction of the testator’s will with the intention of gaining from the estate. 

 

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. 

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