A Will has to comply with multiple requirements of the Wills Act of 1837 in order to be legitimate. To be licit, some of the requirements are:
- The Will must be made in writing,
- The Will must be made by an individual aged at least 18 years old when signing the Will
- Two people must be present and witness the testator (Will maker) signing the Will.
- The Will must be signed by the testator with the intention of creating a legitimate Will
- The Will must be made voluntarily, without pressure from any other individuals
What are the grounds for contesting a Will?
- The testator not having mental capacity
Firstly, one of the grounds for contesting a Will is that the testator did not have adequate mental capacity to understand their actions and the decision they were making. Of course, the law does not require a perfectly balanced mind, if an individual decides to impulsively remove someone from their Will with intentional maliciousness the Will is not deemed invalid. More often than not when contesting a Will, problems occur with memory loss diseases such as Alzheimers. If their memory was lacking at the time that the Will was executed, you would need to show that at the time they did not have capacity to make a Will.
A few examples of a Will being valid due to mental capacity, the individual making the Will must:
- Not be suffering from a mental disorder which could manipulate their views
- Understand the consequences of excluding or including certain individuals in their will
- Understand their estates and belongings and the value which they hold
- Understand that they are making a will.
- Undue influence and coercion
As stated in the oxford dictionary, undue influence is ‘influence by which a person is induced to act otherwise than by their own free will or without adequate attention to the consequences.’ When making a Will, this can occur when a person coerces someone into changing their Will to benefit themselves rather than the testator. When looking at contesting a Will, the court will consider both the physical and mental state of the testator which will show how vulnerable they may be to manipulation. This can sometimes be very difficult to prove, especially as this typically happens in scenarios where the testator is coerced by someone close to them such as solicitors, carers or even relatives.
- Forgery and fraud
When it comes to Will making, forgery can occur when the Will itself or the testator’s signature have been written by someone else impersonating the testator without their knowledge. Fraud can occur when the genuine wishes or intentions of the testator are not contained in their Will intentionally. Fraud or a forged Will are notoriously difficult to prove in court. In order to successfully argue that a signature on a Will has been forged, its typically useful to obtain expert handwriting evidence which can support the allegation of fraud. Forging a Will is very serious matter and on numerous occasions people have been successfully prosecuted and imprisoned as a consequence of their involvement in the act. It is very important that you get specialist legal advice from the outset so that any suspicions you may have can be properly investigated prior to any allegations being made. Allegations can be taken very seriously and may ruin relationships or damage reputations of firms, claims involving these types of allegations can be very distressing for all involved and so obtaining legal advice initially is essential.
