Challenging a Will

When somebody passes, it is usually the case that the most recent will made by them is the valid will, provided that it meets certain basic criteria. For a will to be valid, it must be in writing and signed by the testator together with two independent witnesses. Provided that these formalities are done, the will is valid and probate will be granted.

However, sometimes an otherwise valid will can be challenged if you suspect that the will was made by the testator at a time when they did not have the mental capacity to make the will, known as “testamentary capacity”, or the deceased person was unduly influenced or pressured into making the will.

Testamentary Capacity

For a will maker to have testamentary capacity, they must first have been over the age of 18 years at the time of making the will. Most often, these cases involve a testator who made a will not long before they passed away at a time when they were physically and mentally unwell. They will be based around medical evidence of the testator’s capacity at the time of making the will and that medical evidence will be applied to the test for testamentary capacity known as the Banks v Goodfellow test. This test sets out the criteria for determining whether a testator possessed the necessary capacity to make a will, being that the testator must:

• Understand the nature of the will and its effect
• Have some idea of the extent of the property of which they are disposing under the will; and
• Be aware of the persons for whom the testator would usually be expected to provide (even if he choose not to) and be free from any delusion of the mind that would cause him reason not to benefit those people.

It is a high threshold to get over when you are making a claim to challenge a will on the basis that the testator lacked capacity and is one that will require significant supportive medical evidence.

Undue Influence

Allegations that a testator was unduly influenced into making a will a certain way will often supplement an allegation that a testator had diminished capacity. This is so because you might not be able to meet the high threshold to be successful in claiming that the testator did not have testamentary capacity, however, the fact that the testator was unwell to some degree at the time of making the will could have made them more susceptible to being pressured by another person. Frequently, people who are isolated, dependant on others for their care and residence and in a position of vulnerability are in a position where they could be subject to undue influence.

If you can prove that the testator did not make the will freely and voluntarily, then the will can be set aside. If there is an earlier will that was created validly, that will would then be granted probate. If there is no other will, then the deceased will be taken to have passed away intestate (without a will) and the rules of intestacy will apply.

If you suspect that your loved one’s last will was made when they did not have testamentary capacity or they were unduly influence, contact us to arrange a free no obligation consultation with our estate litigation expert.