Is the Will Valid?
One of the most common ground for contesting a Will is to show that it was not validly made in the first place. The most common reasons why a Will may not be valid are set out below.
The person did not intend to make a Will.
When contesting wills it is quite often found to be the case that the document that purports to be “the Will” may not have been intended by the deceased to be his or her Will at all. If there was no intention to make a Will on the part of the deceased person the document purporting to be the Will may be ineffective. It is possible to succeed in contesting a Will on this ground.
The Will has been revoked and is no longer effective.
Another reason for contesting a Will is that the Will may have been revoked by the deceased person. There are various actions or words that can be taken to revoke a Will. Also, if the deceased person married after making the Will the act of marriage will revoke the Will.
The Will was not properly signed and witnessed.
The legal requirements for the signature and witnessing of a Will are complex. If they are not followed to the letter, this may be further grounds for contesting a Will. For instance, the testator must sign the Will in the presence of at least two independent witnesses who are both present when the testator signs and who each witness the Will in the presence of the other. If not, the Will may be invalid.
The Will was not the last Will of the deceased.
A common ground for contesting a Will is that the deceased made a subsequent Will. In those circumstances, the previous Will is likely to be invalid and ineffective.
The deceased was not of sound mind, memory and understanding when making the Will.
For a Will to be valid, the person making it must be of sound mind and able to understand the significance of what they are doing. If they are senile, temporarily unbalanced, inebriated, under the influence of drugs or medicines or otherwise unable to understand what they are doing, this can be grounds for contesting a Will.
The deceased did not have proper legal capacity when making the Will.
If the deceased did not have proper legal capacity when making the Will it may be ineffective. Children, for instance, do not have testamentary capacity.
The deceased did not know and approve of the contents of the Will.
The person making the Will must be aware of and understand all of its contents and must approve of them. If the deceased was not aware of its contents and did not approve of them this can be another reason for contesting a Will.
The deceased made the Will under duress or undue influence.
If someone makes a Will under threat, duress or undue influence whether or not the threat is physical in nature, the Will can be open to challenge. Often therefore a solicitor will take instructions from a husband or a wife in private in order to avoid any suggestion of undue influence being brought to bear.
The Will was forged or tampered with.
Obviously, if any of the signatures on the Will are forgeries or if the Will has clearly been tampered with and is not complete, this will mean that it is not an effective document.
For further advice on how to contest a Will contact us without delay…
Get FREE Legal Advice