Challenging the Validity of the Will

Challenging a Will can be a complex legal process. But, the key components to consider when making a challenge are as follows:

Was the Will executed correctly?

Often a common ground on which Wills can be challenged is that of the Will being incorrectly executed. For a Will to be valid it must be executed in accordance with the Wills Act 1837 which requires the Testator to sign in the presence of two witnesses. The witnesses must then also sign the Will.

Did the testator have mental capacity?

In order for a Will to be valid, the Testator (the person making the Will) must have mental capacity and understand:

• the nature of making a Will e.g. the effects it will action.
• the extent of their assets; &
• who the beneficiaries are, and the provisions being provided.

Where there is doubt of the mental capacity of the Testator at the time the Will was made then a challenge may be brought.

Was there any undue influence or fraud?

A challenge on the ground of undue influence may be brought if it is believed that the Testator was coerced or pressured via undue influence to make or change their Will in a manner that they would not have done so.

With regards to fraud, if it appears that the Will was forged or created/altered in anyway without the knowledge of the Testator e.g. fraudulently, then it can also be challenged on this ground.

Was the Will revoked?

If it is believed that the Will in question is not the most recent Will in existence e.g. the Testator made a second (new) Will or if the Testator intentionally destroyed the Will then its validity can be challenged.

Was there an error in the drafting of the Will?

Where an error in the drafting of the Will has occurred, and it can be shown that the results do not accurately reflect the Testator’s intentions then it may be possible to rectify this mistake through court proceedings.