Validity of Wills

Courts cannot set aside or vary the provisions of Wills simply because certain family members consider that they have not been treated fairly.

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Stuart Downey
Partner in Dispute Resolution

Contrary to many people’s understanding, Courts cannot set aside or vary the provisions of Wills simply because certain family members consider that they have not been treated fairly. If the Will is valid then the deceased person’s estate will have to be distributed in accordance with the terms of the Will.

The question that frequently arises, therefore, is whether the Will is valid. In order to be valid, a Will first of all, has to comply with certain formalities. If the Will does not comply with these formalities then it is of no effect.

Aside from challenging the validity of a Will because it does not comply with these formalities, there are a number of other bases upon which the validity of a Will can be challenged.

These in summary, are as follows:

  • The person making the Will lacked testamentary capacity. This is lawyer’s jargon for saying that anyone who wishes to make a valid Will must be shown to be capable of understanding what a Will is and does; what the extent of their assets is; and that they have a proper appreciation and understanding of those of their family and friends who could reasonably expect to receive some benefit. There are many cases where this level of understanding is not present. Examples could include somebody who is suffering from dementia or delusions.
  • The majority of Wills which are successfully challenged are challenged on the basis that the person making the Will did not sufficiently understand and appreciate what they were doing.
  • The person making the Will lacked the appropriate knowledge and approval of the contents of the Will. There is a degree of overlap between this and lack of testamentary capacity. A very obvious example might involve someone who has poor eyesight. They may be perfectly capable of giving valid instructions for the preparation of a Will but they are unable to read the Will that is produced to them for signature. If it cannot be shown that the Will was read out to them at the time that they signed it then there might be grounds for challenging the Will.
  • The person making the Will was unduly influenced by somebody else who benefits under the Will. Many clients who come to see us want to challenge the validity of a Will on this basis. Unfortunately the legal and evidential requirements are such that very few challenges on this basis are likely to succeed. That is not of course to say that there are no cases or circumstances where such a challenge can be made.
  • That the Will is a forgery.

We have considerable expertise and experience in knowing what evidence needs to be gathered and what procedures need to be followed in order to assess whether there is any prospect of a Will being challenged on any of the grounds mentioned above. We will be able to tell you clearly whether or not there is any realistic prospect of successfully challenging the provisions of a Will which you are concerned about.

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