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The starting position is that if a Will appears to have been executed properly, then it is presumed to be valid. There are strict requirements relating to the signing (or, more accurately, the “execution”) of Wills and in England and Wales, we are generally free to make a Will in any terms we wish.
There are several grounds to challenge a Will:
The test to establish whether or not someone has the capacity required to make a Will was set down in a case decided in 1870 (Banks v Goodfellow). Broadly speaking, a testator is required to be able to:
The testator should also have no mental disorder that could cause them to make a Will they would not otherwise have made.
If a testator does not satisfy all of these requirements at the time that they gave instructions for the Will, it is likely to be invalid.
If a testator was coerced into making the Will in particular terms that they did not want, then the gift obtained by undue influence is liable to be set aside. Successful claims for undue influence are more common in the case of someone who is vulnerable as a result of impaired mental capacity or otherwise failing health. This is a difficult claim to bring. Persuasion itself is not unlawful, so it needs to be shown that someone has overpowered the testator and caused them to make the Will they made.
In very general terms, this relates to whether the testator knew, understood and approved of the contents of the Will at the time they signed it.
The first ground to consider when reviewing the validity of a Will is whether it was executed (that is, signed and witnessed) correctly.
The requirements of executing a valid Will are set out in section 9 of the Wills Act 1837:
If any of these requirements are not met, then the Will was not properly executed and is not valid.
It may be argued that the signature of the person who made the Will and/or one of the witnesses is not genuine. If that is the case, it cannot be a valid Will.
If someone makes false comments about another person which lead to the testator excluding that person from their Will, that Will could be set aside.
If someone alleges that a Will is invalid, they will usually be expected to make a claim. Their first step will often be to enter a “caveat”, which prevents the executor from extracting a grant of probate. At this stage, it is usually worth exchanging letters to establish each side’s position, and potentially engaging in settlement negotiations.
If they enter a caveat but do not bring a claim, there are steps the executors can take to progress matters. These include “warning off” the caveat, which may be followed by court proceedings, and applying for an “interim” grant of probate. Please contact us to discuss your circumstances.
If a person’s Will (or the rules of intestacy) mean that you are due to receive a share of their estate, you are referred to as a “beneficiary”.
A claim under the 1975 Act could reduce what you receive from the estate. If you are a beneficiary and someone makes a claim, we can advise you in relation to defending that claim. We can often help to resolve the position quickly and before costs escalate.
Executors who do not benefit from an estate will usually adopt a neutral role in claims under the 1975 Act. They are still obliged to be a party to the litigation and to provide certain information for the benefit of the other parties and the court. The cost of obtaining legal advice in this regard is normally a legitimate estate expense and is therefore paid by the estate.
Although we have used the word “executors”, the position is the same for administrators/personal representatives.
Please contact us if you are interested in discussing these options with a member of our team.
If you choose to work with us, you will discover exceptionally talented lawyers who have a passion for making a genuine difference to our clients’ lives. We pride ourselves in being approachable and always ensure that everything we do is in your best interests.
All of our solicitors are either full members of ACTAPS (the Association of Contentious Trust and Probate Specialists) or are working towards that. The team is overseen and led by experienced Partner, Helen Thompson, who is a member of STEP (the global professional association for practitioners who specialise in inheritance and succession planning) and has completed the Advanced Certificate in Trust Disputes. We are also proud to be ranked in the top tier of the prestigious Legal 500 directory.
We provide practical advice and, unlike other firms, are able to deliver a complete service with support from colleagues in our Property and Private Client teams.
From the outset, our costs will be clear and transparent, and we offer a range of funding options, including:
Please contact us if you are interested in discussing these options with a member of our team.
Home-grown or recruited from national, regional or City firms. Our specialists are experts in their fields and respected by their peers.
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