Can you challenge a will?

Posted: Sunday December 6 2020

By: Abbie Coleman

A Will can be challenged by anyone who would have an interest in the estate if that Will had never been made.

Can you challenge a will?

By Tasoula Addison

Can you challenge a will? – A Will can be challenged by anyone who would have an interest in the estate if that Will had never been made. For example, if the deceased made a Will in 2007 leaving their estate equally between their three children, but then made another Will just before they died leaving everything to a neighbour, then the children who would have benefited under the previous Will can challenge the later Will.

A Will can be challenged on a number of different grounds, including:

Testamentary Capacity

For a person to make a valid Will, they must be capable of understanding that they are making a Will, and the effect of that Will- i.e. that the Will dictates who receives what when they die. They must also understand in broad terms the nature and value of their estate, and be able to appreciate the range of people that they might be expected to benefit in that Will, although they are free to leave those people out of the Will if they wish to do so. Finally, they must not be suffering from a “disorder of the mind” that might influence their views. If a disappointed beneficiary can show that the deceased did not satisfy these criteria when they made the Will, then they may be able to overturn that Will.

Lack of Valid Execution

A Will must be signed by the testator (or by someone else that they have directed to sign it for them), in the presence of at least two witnesses, present at the same time, who must also either sign the Will or acknowledge their signature in the presence of the testator. There are also rules about who can act as a witness to the Will. If these rules have not been followed, then the Will is invalid.

Lack of Knowledge and Approval

If you can show that the deceased was unaware of what they were signing, or perhaps unaware of the full contents of the Will, then it is possible to challenge the Will on the basis that the deceased did not have knowledge and approval of the Will. This could be where the Will contains a substantial gift to the person who prepared the Will.

Undue Influence

You can also challenge a Will where there is evidence that the deceased was coerced into making the Will.  The undue influence has to be to the point that the deceased essentially made a Will that they did not want to make, and where there is no other reasonable theory to explain the terms of the Will.

Fraudulent Wills

It is of course also possible to challenge a Will if you think it has been forged, for example if someone else has forged the signature of the deceased on the Will.

The key to successfully challenging a Will on any of the above grounds is having evidence. There may be suspicions around the circumstances in which a Will was drawn up or executed, but without evidence a challenge is unlikely to be successful.