- Grounds for challenging a will
- What makes a will valid?
- Forged and fraudulent wills
- Lack of knowledge and approval
- Testamentary capacity
- Undue pressure or influence
- Rectifying the terms of a will
Grounds for challenging a will
Contesting a will can be a lengthy process. Our experts have helped many individuals and their families contest wills for a variety of different reasons, which we explain below.
A will can be challenged on several different grounds:
• failure to follow the formalities needed to make a will;
• the person who made the will was not of sound mind at the time – they did not have capacity to make a will;
• the person did not know or approve the contents of the will;
• the will was made as a result of undue pressure from a third party;
• the will was forged or fraudulent;
What makes a will valid?
When you prepare a will, there are strict rules setting out the formalities that have to be observed. If you decide to go down the route of a “DIY will” – essentially buying a will-making kit off the shelves at a stationary shop, or downloading a template from the internet, these formalities can be overlooked. If you were to ask what makes a will invalid, it would be where the formalities listed below have not been adhered to.
Even wills prepared by a solicitor or will writer may fall foul of the rules if the individual was left to sort out the signing of the will themselves, and has not been given clear guidance.
What formalities are needed for a valid will?
When making a valid will, the following formalities must be followed:
• It must be in writing;
• It must be signed by the individual who made the will, or by someone in that individual’s presence (and by their direction);
• The individual must sign the will in the presence of at least two witnesses who are both present in the room with the individual at the same time;
• Each of the witnesses must then attest or sign the will in the presence of the individual who made the will, but not necessarily in the presence of each other;
• Each of the witnesses must be over the age of 18, independent, and must not benefit from the will.
Often these requirements can be overlooked, and in particular, the signing and witnessing stage is surprisingly easy to get wrong. This is especially in the case of a homemade will. Due to our increasingly busy lives it can be hard to find a suitable witness when you need one and it can be quite common for a person to sign their will first and then ask witnesses to sign some time later. Alternatively, there may be only one witness to the will.
What should you look out for when checking if a will is valid?
Even if it looks like the formalities for a valid will have been complied with, this may not be the case.
A common sign to watch out for is if the signatures on the will are in different colours. Whilst everyone may have simply preferred to use their own pen, it may be an indicator that the witnesses signed at different times. If there are any doubts about this, then it may be worth speaking to them to check.
If you have any concerns that the formalities for a valid will have not been complied with, either as a named executor or potential beneficiary, then it’s important that you take legal advice as soon as possible. Call our contentious probate solicitors today on 0808 164 0808, or request a call back and one of us will be in touch to help.
Forged and fraudulent wills
If you’re wondering what to do if a will has been forged or is fraudulent, our team can help. Call 0808 164 0808 now.
Some wills may contain surprises that could suggest it is forged or fraudulent. For example, unexpectedly large gifts or named beneficiaries may give you reason to check the will’s validity, because if it has been forged or been part of fraudulent activity, it could be contested.
Of course, these are serious allegations and require compelling evidence to prove them. Just because the terms of a person’s will may be unusual or eccentric, this does not mean it is a fake will. The court won’t overturn the will on such grounds lightly – indeed it is rare so when such cases are successful they tend to be widely reported in the media.
What is a forged will?
The most common allegation is that the signature on a will is forged. That makes it invalid as it does not comply with the formalities for making a will.
In order to successfully argue that a signature on a will has been forged, it is essential to gather expert handwriting evidence which supports the allegation. The handwriting expert will look at various known examples of the individual’s handwriting and compare these to the handwriting and signature on the will. The expert may also be able to use chemicals and other forms of testing on the will to check to see if the signature is genuine, and made on the date that it was supposed to be. There needs to be two witnesses to a will, so if there is evidence that the signature was forged then this raises concerns that the witnesses were involved in the forgery.
Forging a will is a serious offence, and there have been a number of cases where people have been successfully prosecuted in the criminal courts and imprisoned as a result of their involvement in it.
What is a fraudulent will?
The most common example of fraudulent wills is when an individual’s last valid will has either been destroyed or hidden.
In this instance, either an earlier will is put forward in its place (which normally benefits the person trying to commit the fraud), or there is an allegation that there is no valid will, so the estate passes to surviving family in accordance with the intestacy rules.
A fraudulent will could also be proven where a person had made arrangements in a will for a beneficiary, but only on the basis of an individual telling them lies and misrepresenting the true position so that beneficiary inherits; often at the expense of someone else.
A will may be fraudulent if the person trying to prove it as a valid will knows that the individual did not sign the will in front of two witnesses, and that the witness’ signatures were added to the will at a later date.
This would mean that the will would not comply with the formalities for making it a valid document. The witnesses to the will could be involved in the fraud if they try to pretend that they were present when the individual signed the will.
One of the most extreme examples of fraud would be where an individual makes a will pretending to be someone else. Clearly in that situation the signature on the will would also be a forgery.
What are the possible signs of a forged or fraudulent will?
If you believe that a will could be forged or fraudulent then here a few points you should consider:
• Does the will benefit non family members and it would be unusual or out of character for them to provide for them? E.g. carers
• Was the will made shortly before the person passed away?
• Does the signature or handwriting look like the person’s whose will it is supposed to be?
• Was the will homemade?
• Are the witnesses related or connected to a person who benefits under the will?
• Are the provisions of the will significantly different from those in a previous will?
• Did the person say that they had made a will but one cannot be located?
• Was a will found unexpectedly after the person’s death at a location other than at a professional’s office?
• Did the person make little to no provision for a child or spouse when this would have been expected?
If it can be proven that a will is forged or fraudulent, then the estate will be assigned according to the person’s last valid will. Or, if there isn’t one, the estate would be handled in accordance with the intestacy rules.
Important: remember that it is difficult to successfully challenge a will on the basis that it was forged or fraudulent, as the evidence to support such a challenge can be extremely difficult to obtain.
If a will was professionally drafted by a solicitor and witnessed in front of them, then it will extremely difficult to support an allegation of forgery as that solicitor would have to be involved in the fraud – something the courts are reluctant to consider.
There may be good reasons behind something suspicious – for example, if you think a will may be forged because the signature looks different to that person’s signature on other documents, this could be due to them having an illness at the time of signing the will.
Due to these types of claims being upsetting and stressful for individuals and their families, we recommend seeking specialist legal advice as early as possible. The last thing we want is a situation where a potentially invalid will causes family relationships to break down or for reputations to be damaged, which is why it’s so important to handle the issue quickly with expert advice.
Call us free on 0808 164 0808, or request a call back and we will call you.
Is a will valid with any lack of knowledge and approval?
For a will to be valid, (in addition to the person making the will having mental capacity), they must have also known and approved its contents.
If the will was made in suspicious circumstances, rather than arguing undue influence, (which is hard to prove), those individuals disappointed by the terms of the will may allege that the person making the will did not know what was in the will or approve its contents.
The good thing is, knowledge and approval can be tested.
What is the test of knowledge and approval?
The test for knowledge and approval is fairly straightforward:
• Did the person making the will understand:
o What was in the will when they signed it?
o What its effect would be?
The answer to this question should be considered along with all available evidence.
Where the earlier-mentioned formalities of making a will have been followed, and where the individual has capacity, then it is presumed that the individual did know and approve the will’s contents.
If a person wants to challenge a will on the grounds of lack of knowledge and approval, then the burden of showing sufficient circumstances that “excite the suspicions” of the court shifts to them.
What are “suspicious circumstances”?
Examples of suspicious circumstances that excite the court and require further investigation are:
• Where the will was prepared by someone who takes a substantial benefit from it;
• If the will departs significantly from other longstanding wishes in previous wills;
• If the will was homemade and the person making the will didn’t have professional legal advice;
• If the will has a number of obvious errors, spelling mistakes and untrue statements about other beneficiaries;
• The witnesses to the will were not independent and related to the beneficiaries;
• Where the person who made the will is elderly and the will is in favour of people not very close to them, or in a position of power over that person e.g. carers;
• Where the person’s wishes were given in response to leading questions;
• If the will is complex and there is no evidence that it was read or explained to the person making it.
We have a great deal of experience in dealing with will challenges relating to lack of knowledge and approval, acting both for concerned family members and also defending such claims. If you would like to discuss this further, then get in touch.
Challenging testamentary capacity
In order to make a valid will, the individual must have had “testamentary capacity”, meaning they need to be of sound mind. They must have the legal and mental capacity, or understanding, to make a will.
Testamentary capacity challenges are on the increase. This is due to several factors including an increase in dementia related illnesses such as Alzheimer’s disease, and an ageing population so people are living longer and more likely to be suffering from serious illnesses that can affect mental capacity.
How do you check for testamentary capacity?
In order to make a valid will, the individual must:
• Understand that they are making a will;
• Understand what property they have and what they are leaving under the will;
• Understand if anyone else, such as other family members, may have claims on their estate and the consequences of excluding them from the will;
• Not have been suffering from any mental disorder or delusion which influenced their views.
If there are concerns as to whether the individual had testamentary capacity to make a will, then it may be possible for the will to be challenged on this basis. However, just because a person is old or suffering from an illness such as Alzheimer’s does not automatically mean they do not have capacity to make a will, as they may still be deemed to have capacity.
Is testamentary capacity fixed?
Capacity is not set in stone and can fluctuate. A person may have testamentary capacity on the morning but not as the day progresses, or vice versa.
Also if the will is simple the individual is more likely to have capacity than if it was a complex will. Each case is different and needs to be assessed on an individual basis.
How is testamentary capacity assessed?
Ideally if a solicitor prepared the will, they would have satisfied themselves that the individual had capacity at the time of giving instructions for the will. If there was any doubt, then the solicitor should have obtained a medical report specifically addressing the capacity point.
If no such report was obtained then those challenging the will would require an expert medical report in their favour, though this will be based upon the individual’s medical records. A statement should also be obtained from the solicitors who prepared the will about the circumstances surrounding the making of the will. This may give some clarity as to the person’s reasons for making the will, or may be evidence that they did not have capacity. Other friends and family can often provide useful evidence about a person’s capacity, though the best witnesses are those who are independent and don’t stand to gain from the dispute.
Capacity challenges can be some of most emotionally challenging claims. Not only are other family members likely to be involved, but they may involve examining the deceased’s personal and medical history which could be quite distressing. It is therefore important for these claims to be approached objectively and that the correct test is applied. Anyone who has concerns about an individual’s testamentary capacity to make a will or is having to defend a possible capacity challenge, should contact us. You can call us free on 0808 164 0808, or request a call back and one of our team will be in touch at a time that suits.
Undue pressure or influence
If a person’s will leaves a surprising or unexpectedly large gift to a particular beneficiary or cuts someone out completely who would have expected to inherit, then this can raise suspicions amongst other family members.
This may be the case if the person was particularly old or vulnerable at the time the will was made. A person is free to leave their estate to whomever they wish, but the decisions that they make should be their own and should have been made free from any undue pressure or influence from a third party. If it wasn’t, then that would make the will invalid.
What is undue influence in a will?
For a will to be found invalid as a result of undue influence it has to be shown that the individual who made the will had been coerced into making it. This coercion has to been at such a level that it overpowered the true wishes of that individual. Simply persuading someone to benefit them in their will is not on its own enough to amount to undue influence.
If someone influences the individual making the will against one of the other potential beneficiaries of the estate, then that may be cause for an invalid wills claim for undue influence. Undue pressure can also be inferred from the circumstances surrounding the making of the will.
How can undue influence in a will be proven?
Though undue influence is a very common allegation that solicitors hear from disgruntled family members, it can in practice be very difficult to prove. There are only a handful of reported cases where the will was overturned on the grounds of undue pressure or influence.
The allegation that someone has improperly pressured another person to tip their will in their favour is very serious, and often seen as equivalent to fraud. Therefore there is a high burden of proof and the court would want compelling evidence before they ruled that the will was invalid on those grounds.
Grounds for rectifying a will
There are limited circumstances when the court will rectify the terms of a will:
• if the will is incorrect due to a clerical error
• there was a failure by the person who prepared the will (e.g. a solicitor) to understand the instructions of that individual
A clerical error would include typographical errors, writing something which was not intended or failing to include something which was intended to be inserted in the will. This could include the insertion or omission of a word, figure or name. In a recent case, a couple made wills that mirrored each other but they had accidentally signed the other’s person’s will. This error was not spotted until the death of the second person so by that time it was too late for the individuals to remedy the situation themselves. The Court ruled that mistakenly signing somebody else’s will amounted to a clerical error and rectified it to make a valid will.
Not every error will be capable of being rectified by the court and so the will may end up being invalid or the true wishes of the deceased may not be followed. Alternatively, even if the will is rectified, the parties may end up incurring significant costs in applying to the court to sort out the mistake, especially if an application was contested by other beneficiaries. In such situations, if the will was prepared by a solicitor or will writer, then there may be a claim for professional negligence against them.
What is needed to bring a claim for rectification?
To bring a claim for rectification it is essential to try and discover what the intentions were of the individual who made the will. If the will was made by professional advisors then they may have kept notes setting out the individual’s instructions and it may be possible from these to identify the individual’s intentions. Other documents, such as previous wills may also be used as evidence.
Is there a time limit for bringing a rectification claim?
There is a short time limit for bringing a claim for rectification of a will as it must be brought within 6 months from the date of the Grant of Probate/Letters of Administration. Therefore anyone who wants to bring such a claim must act promptly.
It is important that if a rectification claim is being considered, that specialist legal advice is taken promptly, not only to ensure that any claim is brought within the time limit but also to ensure that steps can be taken to safeguard any evidence that may otherwise end up being disposed. We have a great deal of experience in making such applications to the court and will be happy to assist.