On what grounds can I challenge the validity of a will?

There are a number of arguments that you may be able to run to challenge the validity of a will, which are mainly:

  • The will has not been properly executed - For a will to be valid, it must be in writing and must be signed by the testator (i.e. the person making the will) in the presence of two witnesses who must also sign the will in his or her presence. If that has not been done, the “will” is not valid. You may also have concerns as to whether the signatures are genuine, which we can help you to investigate.
  • The testator lacked mental capacity to make a will - It is essential that the testator understood that they were making a will, what property they owned and who might have a claim to their Estate (such as family members and other loved ones). The testator must not be suffering from any disorder of the mind or any delusion that would affect that understanding. We can discuss with you whether any mental health conditions or an illness could have affected the testator’s testamentary capacity to make a valid will.
  • The testator did not know and approve the content of their will - The testator must also know what the terms of the will say, and they must approve its content. This is usually done by the testator reading the will or having the will read to them before they sign it. There is a rebuttable presumption that a testator knows and approves the content of a will that has been properly executed. Claims that the will is invalid due to a lack of knowledge and approval typically arise where there are allegations that someone has taken advantage of the testator or where the will has been drafted by someone who benefits under its terms.
  • The testator was coerced or unduly influenced by somebody else to make the will - If you are concerned that undue pressure was put on the testator to make or change their will, this can render the will invalid. To successfully challenge a will on this basis, there must be no other reasonable explanation for the will saying what it says. Typically, you will need to evidence that the deceased would not have made a will in such terms unless they had been unduly influenced or coerced to do so. Red flags for possible undue influence include homemade wills prepared by someone who benefits substantially from the Estate, the inclusion of someone in a will for the first time, a large increase in the proportion of an Estate being left to a person (particularly if the deceased was dependent on that person when the will was made) and where the deceased was ill, frail or vulnerable when the will was made.
  • The testator married or entered into a civil partnership after the will was made - Marriage or entering into a civil partnership automatically revokes any will that was made before that date, unless the will is expressly stated to be made in contemplation of that marriage or civil partnership.

Read our full wills and probate FAQs articles here

CONTACT CLARE

If you would like more information or advice relating to this article or a wills dispute matter, please do not hesitate to contact Clare Mackay on 01727 798025.  

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Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them alone. You are recommended to obtain specific advice in respect of individual cases.