Do you suspect that your loved-one’s Will does not truly reflect the kind of provisions that he/she wanted to make? Do you feel that somebody may have influenced the content of the Will, but you just can’t prove it? Are the terms of the Will “just not what your loved one would have wanted?” Do you suspect that the Will-maker might not have known or understood what he/she was signing? Are you worried that there is a questionable Will that officials have assumed to be valid?
If the answer to these questions is “Yes”, then it may be possible for you to show that the Will is invalid.
It is crucial for you to understand that a Will-maker must be fully aware of the contents of his/her Will, and that he/she must also fully approve of those terms. If this is not the case, then the Will is actually invalid due to a “want of knowledge and approval”.
The assumption of validity
Anybody who seeks to rely on the last Will must prove that the Will-maker had appropriate knowledge of, and approved of, the contents of that Will. They must satisfy the Court that the contents truly represented the Will-maker’s testamentary intentions at the time that the Will was signed.
If there are no suspicious circumstances, then this will not be a problem. In fact, when on the face of it the Will-maker appears to have signed the Will and arranged for it to be witnessed appropriately, the courts will happily assume that he/she also had full knowledge of the Will and approved of all its contents. The courts will readily make this assumption when the Will was made by and signed in front of a Solicitor.
However, when there are more difficult circumstances, the burden of proving that the Will-maker nevertheless had due knowledge and approval of the Will can be much tougher. The more suspicious the circumstances, the tougher it will be to prove that the Will is valid.
Sometimes, natural situations can give rise to a reason for the courts to take more care. For example, if the Will-maker was blind, or illiterate, or deaf, then the courts will naturally wish to scrutinise the circumstances as to how the Will came to be made in more detail.
These situations will naturally require a higher degree of proof, although in most circumstances it will not be difficult to satisfy the court’s queries.
However, there may be other circumstances that give rise to more suspicion. If the court shares this suspicion, then those who seek to rely on the Will tend to find it a lot harder to prove that the Will is valid in the first place. The more suspicious the circumstances, the harder it will be to satisfy the court of the validity of the Will. If the court cannot be satisfied, then the Will is likely to be found to be invalid.
Examples of suspicious circumstances might include: –
- The main Beneficiary drafting the Will, or being instrumental in the creation of the Will.
- The relationship between the Will-maker and the Beneficiary not being a close one.
- The Will-maker failing to seek professional advice about the Will, especially if the Will is of the “do-it-yourself variety”.
- There is a significant difference between the provisions of the final Will in comparison to provisions in historical Wills, which is difficult to explain.
- There is evidence that the contents of the Will were not read or explained to the Will-maker, especially if the contents were complicated.
- The Will contains spelling mistakes that the Will-maker would not have made (for example getting relatives names wrong etc).
- The Will contains language that the Will-maker would not naturally have used or even understood.
- Some of the facts mentioned within the Will are untrue, and the Will-maker would have known those facts to be untrue.
- The witnesses to the Will were not sufficiently independent.
- There is some evidence of the Will-maker’s mind failing.
If you fear that the Will-maker did not have any knowledge of the Will, or did not approve of the provisions contained therein, then you can seek to challenge the Will. In doing so, you will actually compel those who wish to rely on the Will to prove that the Will is valid. If they cannot, then the Will shall be deemed invalid.
Nevertheless, you should try to find sufficient evidence to show that the Will-maker’s “knowledge and approval” was lacking.
You should identify those parts of the checklist above that correspond with your suspicions.
At C-PAID Solutions, we can offer advice about whether the Will is likely to be upheld or found to be invalid, and if you have a good case we can source specialist will dispute solicitors to act for you on a No Win No Fee basis.