There are some key requirements for a Will to be valid, and whilst a Will can be challenged, it is not easy to bring a successful claim.
Richard Woodward, associate solicitor in Bray & Bray’s dispute resolution team, explains the importance of having a valid Will and the main grounds for challenging a Will.
Does having a Will actually matter?
It may be strange for a solicitor to pose this question, but it is a question I’ve been asked on several occasions by different clients. The reason people ask is because of the amount of press that challenges to Wills generate. Whether this is celebrities with big estates, individuals who cut out their children from the inheritance, or families that benefit over other families when the parents from ‘blended’ relationships pass away.
All of these scenarios, and more, can lead to a challenge that someone has been ‘forgotten’, or the testator did not know what they were doing when they signed the Will, or an individual forced the deceased into signing the document now presented as their ‘Last Will and Testament’.
Recently, the press have reported that the adult children of the former Monty Python cast member, Terry Jones, are seeking to set aside his Will which leaves, it seems, the majority of his estate to his younger wife.
Due to the number of challenges that are currently sitting with solicitors around England and Wales, it does seem that some people are right to ask if having a Will actually matters. But it clearly does as, although a Will is challengeable, it is not easy nor straight forward to bring a successful claim.
Challenging a Will
Some of the most common reasons for contesting the validity of a Will are:
- The Testator did not have the requisite capacity to sign the Will when they did. This is generally used when it can be shown that the deceased had suffered from dementia or a similar illness that could have affected their memory at the material times;
- The Testator was unduly influenced or fraudulently convinced by another to change their Will generally to the benefit of that person;
- The Will did not follow the requirements under s9 of the Wills Act 1837, which governs what has to be done for a Will to be valid; and/or
- The Will does not give ‘reasonable financial provision’ to a member of the family of the deceased or someone who was financially dependent upon them.
None of the above claims can be proven upon suspicion and therefore time needs to be given for the gathering of evidence to convince a judge that the Will that has been presented is not valid.
For example, a medical expert would need to give an opinion on the presumed state of mind of the Testator at the time they were executing their Will, which would require the obtaining of medical records. Or the witnesses may need to be tracked down to provide evidence of what happened when the Will was executed. Did the witnesses actually sign the document? Did they see the Testator’s signature? Was anyone else present who was ‘pressing the issue’?
The general principle is that a signed Will is valid and that’s why it is important to have one. If someone doesn’t, their wishes will never be followed, and the rules of intestacy will apply. That’s not to say that signed document cannot be challenged, but it does put the onus on the person(s) seeking to challenge to prove there were significant issues which mean the Will is invalid.