Validity of the will
Being left out of a will by a loved one or a relative can be fractious for family relationships and leave legitimate feelings of hurt. Where the circumstances apply, there are well established frameworks for challenging wills to which you believe you have an entitlement. Below, B P Collins’ contentious probate team, deal with the grounds for such challenges and identify things to consider when making a claim of this kind. Contesting the will of a relative or loved one is never a decision to be taken lightly, but B P Collins can be by your side every step of the way.
Contesting the will document itself is the first ground to consider for disputing a will.
In order to be valid, a will must meet the following criteria:
- The will must be properly signed and witnessed;
- The will must have been made without undue influence;
- The testator (the person who is making the will) must have known and approved the contents of the will;
- The will must not have been forged; and
- The testator must have made the will with full testamentary capacity.
The first can be proved on the face of the document itself. There are strict requirements for a will to have been properly signed and witnessed. In summary, the will must be in writing and signed by the testator, or by another person in their presence and at their direction, and it must appear that the testator intends for the will to take effect as written. The signature must be made or acknowledged in the presence of two or more witnesses who each sign the will in the presence of the testator (though not necessarily the other witnesses).
The other items on the list require detailed investigation. For example, proof of testamentary capacity or undue influence will require analysis of the file compiled by the solicitor instructed in the preparation of the will. In circumstances where the will was drafted by the testator, this naturally becomes more difficult to prove.
There is no time limit for contesting a will on its validity. The usual rules of limitation do not apply. So even if the will was relied upon a number of years ago, action can still be taken.
A successful claim against the will’s validity results in that particular will being disregarded in the estate administration. Should the testator have a previous will, it is that earlier will which becomes relevant for the estate administration. Alternatively, where there is no former will, the intestacy rules shall apply for distribution. Suspect the will you are reading is invalid? If you have any concerns and wish to speak to a member of our team, please contact 01753 889995 or email enquiries@bpcollins.co.uk
This article is part of a series on “Feeling left out? How to challenge your parent’s will”. Read the rest of the series of articles here
Using the Inheritance Act to challenge your parent’s will
Getting what you were promised – challenging your parent’s will
