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How can a Will be disputed or challenged?

Posted on 26th September 2016 in Dispute Resolution

Posted by

Martin Laver

Partner and Solicitor
How can a Will be disputed or challenged?

Distributing the estate of someone who has died is a process that sadly often results in legal disputes between family and friends. This is particularly the case if they feel that they haven’t been included in the Will and ought to have been or have been ‘short changed’ in some way. 


How can a Will be disputed or challenged?

A Will can be disputed for the following reasons:

  • The will does not comply with the Wills Act 1837.
  • The deceased was coerced into making the will (called undue influence).
  • The deceased did not have capacity to make a will.
  • The deceased did not have knowledge and approval of the will.
  • The will is a forgery or fraud.
  • The Will fails to give effect to the deceased’s wishes (called Rectification).


What is the Wills Act 1837?

For a will to be valid, it must comply with Section 9 of the Wills Act 1837 which states that a will must:

  • Be in writing and signed by the testator (the person making the will).
  • The testator’s must have intended by his signature for the will to be valid.
  • The testator’s signature must have been witnessed by two or more witnesses which were present at the same time.
  • The witnesses must each either attest and sign the will or acknowledge the testator’s signature (but not necessarily in the presence of any other witnesses).


What is undue influence?

A will can be disputed if the person who made the will was subjected to undue influence, or pressure by a third party. The law defines pressure as coercion which may be “physical violence, verbal bullying or simply talking to a sick person who is seriously ill in such a way that the person may be induced for quietness sake to do anything.”

The key factor in determining whether there has been undue influence is whether the coercion is such that it overpowered the will of the testator.


What is capacity?

The law follows the decision in Banks v Goodfellow[1869-70] which states that a person making a will must have capacity; that is, “sound mind, memory and understanding”. The testator must:

  • Understand that they are making a will and its effects;
  • Understand the extent of their estate;
  • Understand claims to which he/she ought to give effect;
  • Not be suffering from any “disorder of the mind” that shall “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties and that no insane delusion shall influence his will in disposing of this property and bring about a disposal which, if the mind had been sound, would not be made”.

There is a presumption that the testator has/had mental capacity if the will appears to be rational and contains no irregularities.

If you suspect that the testator did not have capacity to make their will and/or understand the content of their will, you should take legal advice as soon as possible. In some circumstances, it may be appropriate to enter a caveat to prevent the estate from being distributed until the matter is resolved satisfactorily.

Determining capacity will usually come down to medical records and witness evidence, particularly from close friends and family. If the will is determined to be invalid and there is not an earlier valid will, then the estate will be distributed according to the rule of intestacy.


How to prove knowledge and approval

If there are suspicious circumstances surrounding a will, but there is not sufficient evidence to prove undue influence, the Court must be satisfied that the testator had knowledge and approval of the contents of the will. This means that the testator understood that he or she was making a will and the effects of the distribution set out in the will.

If the will has been executed properly and the testator had capacity, it is presumed the testator had knowledge and approval. However, the following circumstances are those in which it must be proved the testator had knowledge and approval of the content of the will:

  • If the testator is illiterate or blind.
  • The testator cannot speak or write, or is paralysed.
  • If the testator is deaf and/or dumb.
  • It is alleged that the testator directed another person to sign the will on his or her behalf.


What happens if there is forgery or fraud?

If it is proven that a will has been forged or the signature of the testator has been forged, this will result in the will being declared invalid. Fraud is defined as “an intentional deception made for personal gain or to damage another individual.” Fraud will also lead to the will being declared invalid.


What is rectification?

The law provides that “if the court is satisfied that a will is so expressed that it fails to carry out the testator’s intentions, in consequence of a:

  • Clerical error.
  • Failure to understand his intentions.

It may be ordered that the will should be rectified so as to carry out his intentions”.

A “clerical error” is defined as “an error made in the process of recording the intended words of the testator and the drafting or transcription of his will”. For example, if the testator gives instructions to leave all of his children an equal share of the estate but the solicitor did not name all of the children, this would be a clerical error. However, if the error was because the solicitor (or will writer) did not understand the law, then it would not be a clerical error, but rather professional negligence.

Failure to understand instructions is where the solicitor or will writer simply did misunderstood the testator’s instructions. A claim in this respect can only succeed if the following can be shown:

  • The testator’s intentions.
  • The will fails to accurately reflect the testator’s intentions.
  • The testator’s intentions in regard to specific clauses in the will.
  • That the solicitor or will writer misunderstood the testator’s intensions.
  • That the failure to understand the testator’s instructions was the cause of the failure of the will to reflect the testator’s intentions.

The evidence required to pursue such a claim will be a copy of the will preparation file as well as the solicitor or will writer’s comments as to whether the will aligns with the testator’s wishes (Larke v Nugusrequest).

A claim for rectification must be made within 6 months from the date the Grant of Probate was issued. A claim brought outside of this time can only be permitted in limited circumstances and will require permission from the court.


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