Challenges Relating to the Validity of a Will (or Trust)
Legal challenges concerning the validity of a will or trust are intricate and require specialist advice before proceeding with a claim. These cases are highly fact-specific and demand substantial evidence gathering at the outset to ensure that any claim, whether brought or defended, is well-informed. Whether you're a potential claimant, defendant, or an executor or trustee caught in a will dispute, we're here to guide you towards a resolution.
Lack of Testamentary Capacity
A challenge based on lack of capacity argues that the testator (person who made the will) was not mentally competent when the will was created. To have capacity, the testator must understand the nature of the act, the extent of their assets, and who stands to benefit or lose from the will. Conditions like mental illness or dementia can impair cognitive abilities, and a successful challenge requires evidence, such as medical records, proving the testator's lack of comprehension. If upheld, the will may be declared invalid, and the estate distributed under an earlier will or intestacy rules.
Undue Influence
This challenge claims the testator was improperly influenced to make or change their will against their true intentions. The challenger must prove that the testator was manipulated to such an extent that their free will was overpowered. Direct influence involves active pressure or coercion, while indirect influence may involve subtle manipulation. Evidence of undue influence can lead to the will being deemed invalid.
Lack of Knowledge and Approval
This challenge asserts the testator did not understand or approve the will's contents at execution. The testator must be aware of the provisions and agree voluntarily. If it can be shown that the testator was unaware of significant details, the will may be invalid. Suspicion of errors or undue influence during drafting can raise this challenge.
Fraud
Fraud challenges argue the testator was deceived into signing or altering their will. This involves providing false information or concealing facts to manipulate decisions. Clear evidence of deception, such as false claims or tampering, can invalidate the will.
Lack of Formality
A challenge based on lack of formality refers to failing to meet legal requirements under Section 9 of the Wills Act 1837. For validity, a will must be written, signed by the testator, and witnessed by two individuals. If formalities aren't followed, the will can be rendered invalid, affecting beneficiaries' entitlements.
Construal & Rectification
This challenge addresses ambiguities or mistakes in the will's language or intent. "Construal" involves interpreting unclear provisions, while "rectification" corrects clerical errors. The court may interpret or correct the will to reflect the testator's true intentions. If not, a claim of professional negligence against the solicitor may be pursued.
Presumption of Destruction
If the original will is missing, a dispute may arise about whether the testator destroyed it intending to revoke it. Common law presumes revocation if the will was last with the testator. Specialist legal advice is essential to avoid administering a revoked will.​
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