Disputes over the validity of a will might arise for a number of reasons, including concerns regarding the testator’s (the person who made the will) mental capacity, if they knew of and approved the contents of their will, whether the will was validly signed and executed, if the testator may have been unduly influenced by another person to prepare their will in a particular way, or whether the will was signed by the testator at all (or is a forgery). B P Collins’ contentious probate team explores in more detail.
Lack of capacity
A person must have capacity to make a will, known as testamentary capacity. Having testamentary capacity means that the testator must:
- Understand the nature of making a will and its effect;
- Understand the extent of their property;
- Be able to comprehend and appreciate the claims to which they ought to give effect;
- Have no disorder of the mind which ‘shall poison his affections, pervert his sense of right, or his will in disposing of his property’.
If a testator does not have testamentary capacity, the resultant will is invalid. Where a person is seeking to rely on a will which you believe to be invalid, you may be able to bring a claim for a declaration of invalidity. Alternatively, if someone else has alleged that a will you are trying to rely upon is invalid, you may ask the court for a declaration of validity.
Want of knowledge and approval
A will cannot be valid if a testator did not know of and approve the contents of their will. Want of knowledge and approval may arise with a capacity claim. However, even where a person has capacity, a claim for invalidity based on want of knowledge and approval may arise, for example where:
- The testator did not speak or read the language in which the will was written (and it was not translated for them);
- The testator was visually impaired or hard of hearing;
- Someone gave instructions on the testator’s behalf which were not confirmed or agreed by the testator;
- For some other reason, the testator did not understand the terms of the will, even though they had the testamentary capacity to make it.
There are particular risk factors for an estate dispute due to want of knowledge and approval including:
- Very elderly, frail, or otherwise vulnerable testators;
- Testators who change their instructions or wishes dramatically from previous wills;
- Testators who have never met with the will drafter or had the contents of the will explained to them;
- Homemade wills ;
- Wills witnessed by friends or family of the person benefiting from it, rather than the ‘natural’ witnesses the testator might have asked.
Invalidly signed wills
Wills have very specific signing requirements which are set out in the Wills Act, which requires that a will must be:
- In writing;
- Signed by the testator (or someone else in the testator’s presence and at his direction);
- The testator must intend when signing the will for it to be valid;
- The testator’s signature must be acknowledged in the presence of at least two witnesses.
Any will which is not validly signed is invalid and cannot be admitted to probate. At times, this is obvious, for example, if there is only one witness it will normally be clear that the will was invalid. At other times there may be a more complex dispute. For example, if the will was signed by someone other than the testator, there may be a dispute as to whether it was signed at the direction of the testator or not. In this case, the court may be required to pronounce in favour or against the validity of the will.
Undue influence
Undue influence occurs when a person is unduly influenced or coerced to change their will. Undue influence claims can be difficult to prove because there is a fine line between suggestion and coercion, and because the evidence is often difficult to gather when the main witness (the deceased) is no longer able to give evidence.
A will which is executed as a result of undue influence would be invalid.
Forgery or fraud
A forged will or a will executed as a result of fraud is invalid. A will which is a forgery (being signed by someone other than the testator) would be both invalidly executed and void as a result of want of knowledge and approval. Claims for both fraud and forgery are rare and usually require expert handwriting evidence to prove, on the balance of probabilities, whether the document was executed by the testator.
Our team has vast experience in bringing and defending claims relating to will validity on a variety of grounds. Our expert contentious trusts and probate team can advise you in relation to will validity claims and the remedies which may be available.
If you require advice in relation to a will validity dispute, please contact our contentious probate lawyers at enquiries@bpcollins.co.uk or on 01753 889995.
