When a loved-one has died, one of the first things that is looked for is their last Will and Testament. However, if this Will contains provisions that are unexpected, or if you have questions about how the Will came to be executed, then you may believe there are grounds to contest it.
There are a number of reasons why a Will might be found to be invalid. While your solicitor can help advise you on the law, these cases are extremely fact-specific and oddities with the Will will often only be apparent to those who knew the deceased well.
Some of the reasons why a Will may be found to be invalid are:
- Want of form or execution – the requirements to make a Will have not been made out. The Will may not have been witnessed by two people, or those witnesses may not have attested their signatures to the Will. Whilst it is not a requirement to have the witnesses fill in their name, address and occupation, this is the usual form, and can be extremely helpful in tracking down crucial witnesses.
- Want of knowledge or approval – all of the formalities may have been carried out correctly, but the deceased must have understood what they were signing, and approved the contents of the Will. If not, it can be set aside.
- Fraud or forgery – the deceased may never have personally signed the Will, and their signature could have been forged. Alternatively, the deceased could have been induced into making a Will they might have otherwise made as a result of “fraudulent calumny” – someone dishonestly poisoning the deceased against someone they would otherwise have made provision for.
- Lack of capacity – the deceased may not have had the ability to understand the terms of the Will, give informed instructions, and to understand what they are signing. This is one of the grounds that is frequently brought to contest a Will, but in the first instance the burden of proof is on the person contesting capacity, to demonstrate that there is something which raises suspicion. Otherwise, there is a presumption that the person making the Will did have capacity.
- Undue Influence – the argument that a person was exercising such influence over the deceased so as to make them change their Will so as to do something they would otherwise not have done. In these cases, the burden of proof is on the person making the allegation of undue influence, and it is a high bar to get over. Mere influence, or suggestion, or persuasion, is not enough, and frequently these kinds of claims are brought where there is the suggestion of intimidation or other threat against the deceased.