For a Will to be valid it must meet the requirements of Section 9 of the Will Act 1837. This means:
- It must be in writing;
- It must be signed by the person making the Will;
- The testator must have intended for their signature to give effect to the Will;
- It must have been signed in the presence of two witnesses present at the same time; and
- The witnesses must have afterwards signed the Will in the presence of the testator.
If any of these formalities have not been properly adhered to, the Will can potentially be challenged. ‘Home-made’ Wills or those prepared and sent to the testator for signature without full instructions of signature are often incorrectly witnessed and, therefore, more likely to be challenged. It is always advisable to prepare your Will with the assistance of a Solicitor who will provide the testator with a complete advice.
The rules of validity are not always clear, and recent case law has tested the rules further.
- In the case of Marley v Rawlings and another  UKSC 2, a mirror Will was signed by the wrong partner. It was held that the Court has the power to rectify a Will and declare it valid, “if the will is so expressed that it fails to carry out the testator’s intentions because of either: a clerical error, or a failure to understand his instructions”.
- Further, in Payne and another v Payne  EWCA Civ 985, where a witness to a Will signing had written their name on the Will but had failed to sign it, the Court demonstrated that where necessary they will take a broader perspective to determine if a Will was valid. Here they decided that the witness writing their name was sufficient for the purposes of witnessing the Will.
Both cases show that the Courts are willing to go beyond the literal interpretation of Section 9 (outlined above) to make decisions which have significant consequences for beneficiaries where it is fair and reasonable to do so.
Here are some other ways a Will may be challenged:
Lack of testamentary capacity
For a Will to be legally valid, the testator must have mental capacity at the time of making their Will. In order to challenge a Will for lack of capacity, it is necessary to obtain evidence of the testator’s state of mind at the time the Will was made and signed. A person making a Will should understand what assets they have, the effect of making a Will and they must be able to appreciate to whom they might be expected to provide for.
Concerns often arise when an individual has been diagnosed with a medical diagnosis, such as dementia, prior to making a Will. However, where an individual has been diagnosed with dementia, this does not necessarily prohibit them from drafting a Will provided that they are capable of understanding the following:
- what a Will is, and the nature and effect that it will have;
- the extent of what they will be leaving in their will; and
- the obligations which someone in their position would usually have towards their family and other relevant individuals.
However, where there is a risk that capacity may be an issue it would be prudent for those involved in making the Will to engage a medical practitioner to verify the testator’s capacity at the point of execution of the will. Similarly, lawyers involved in the preparation of Wills should always make a detailed note, which can be used to demonstrate that they have satisfied themselves that the appropriate test for assessing testamentary capacity has been met.
This record should be kept with the Will and used in the event the Will is challenged.
A Solicitor may keep records on file in relation to the circumstances surrounding the Will, including in depth notes about their discussions with the testator and the basis on which they were satisfied the testator had capacity at the time of making the Will.
In the context of challenging a Will based on undue influence, it is for those challenging the Will to produce sufficient evidence to satisfy the court.
Undue influence requires the person making the Will to be coerced into making it. While strong evidence is required for such a challenge, the level of influence required will depend on the circumstances of each case. For such a claim to succeed the court will need to be satisfied that there is no other reasonable explanation for the testator’s actions. It must be proved that the testator acted against their own accord and that they were coerced into making a Will that they did not want to make.
One way to ensure that a challenge of undue influence does not arise, is to make your Will without involving your family in any way. To avoid the appearance of undue influence, family members should not be present when you discuss the Will with the person drafting the Will, in particular family members who are benefitting under the Will.
The situation if a testator did not properly understand and approve the content of the Will?
A testator must know and approve the contents of any Will executed.
For those seeking to challenge the Will on the basis that the testator didn’t understand and approve the content of the Will, the burden falls on them to prove this. Some common examples of suspicious circumstances could be where the testator had a speech, sight or hearing impairment was frail, unwell or otherwise vulnerable or where the Will was particularly complex or unusual.
In these instances, it would be advisable for a testator to see a Solicitor to make a Will of their own accord. The Solicitor can then speak with the testator alone to ensure they fully understand the nature of their Will.
Fraud or forgery
Although not as common as other forms of challenging a Will, claims can arise in some rare circumstances such as an individual coming forward with a home-made Will which, for example, benefits themselves. If it can be proven that a Will has been forged, the Will is invalid. At the outset, it is advisable to obtain the advice of a handwriting expert as to whether the signature is genuine.
More generally, and although rare, a Will could be challenged on the basis of fraud for example, an intentional deception made for personal gain, or to damage another individual. An example could be where someone has impersonated the testator. In order to avoid a challenge like this occurring, it is advisable to seek an independent party to write your Will who can confirm your identity using proof of identification from the testator at the time of meeting the testator.
Inheritance Act claims
Most claims against the personal estate of a deceased person may be brought up until the expiration of 12 years from the date of death. However, this is not always the case and there are a number of notable exceptions.
Whilst strictly not a basis for challenging a Will, but rather a claim, The Inheritance (Provision for Family and Dependants) Act 1975 allows certain people to claim financial provisions from an estate. While a person may leave their estate to whomever they wish in their Will, the law does make provision for those who might reasonably expect to receive an inheritance but are excluded or receive less than they need. Those protected by this act include spouses/civil partners, children (both minors and adults), former spouses/civil partners (if they haven’t remarried), someone who continually cohabited with the person for at least two years before their death and someone who was financially maintained by the person who has passed away.
A Solicitor can help you draft a letter of wishes explaining why no provision has been made for someone who may expect to have been provided for under the Will. There would then be a statement from the person making the Will to explain their situation at the time of making the Will. This would only be considered as evidence in defence of such a claim.
There is no definitive way of preventing such challenges against a Will. However, there are steps that you may wish to take when making a Will. A Solicitor can help provide the necessary evidence to ensure that the validity of a Will has been met at the time of making a Will.
Expert Legal Advice
It is always advisable to seek independent advice when making a Will.