What are the Grounds?
If the beneficiary or applicant can evidence
that they were either financially dependent on
the deceased and an insufficient share of the
estate or monies was left to them, or that they
fall into one of the categories of family member
and ‘reasonable provision’ has not been made
they can bring a claim under the Inheritance
(Provision for Family and Dependants) Act
1975. An example of this might be a testator
who makes no provision in their Will for their
child who is dependant on them.
The Testator Lacked Capacity at the Time of
Making the Will
The testator must have capacity at the time
of making the Will. They must also know and
approve the contents of the Will. The test for
capacity to write a Will is the Banks v Goodfellow
test. It must be shown that the testator:
• Understands the nature of making a Will
and its effect
• Understands the extent of their property/
assets
• Understands and appreciate the moral claims
they ought to give effect to i.e. who they
might reasonably be expected to provide for
• Is not suffering from any disorder of the
mind that is ‘poisoning their affections’ and
interfering with how they distribute their
estate.
The Testator was Unduly Influenced
Undue influence is defined as “influence by
which a person is induced to act otherwise
than by their own free will or without adequate
attention to the consequences.”
What are the Other Grounds for
Challenging a Will?
The second category of challenges are claims
that the Will is invalid for some reason. There
are generally 3 other main reasons why a Will
would be challenged. Let’s look at these in more
detail.
The Will is Invalidly Signed
The requirements for a valid will are set out in
section 9 of the Wills Act 1837 which are:
• It must be in writing
• It must be signed by the testator, or signed
on their behalf
• The testator must sign or acknowledge their
signature in the presence of 2 witnesses.
• The witness must sign or acknowledge their
signatures in the presence of the testator.
Effectively, this involves applying pressure on
the testator and making them do something by
using force or threats which takes away their
ability to make decisions at their own free will.
Due to its nature, undue influence normally
happens behind closed doors and ordinarily by
people who are in a position of trust i.e. solicitor
and client.
As it can be very discrete, a claim of this sort
can be very difficult to prove as the Court will
need to rely on the evidence presented to them.
Therefore, the only way it would be possible to
illustrate any undue influence is by the claimant
evidencing that there is “no other reasonable
explanation” for the Will being drafted as it is.
For more information please see our article
which solely discusses the issue of undue
influence and Wills.
If these requirements are not met then the Will
won’t be valid and will fail.
the society of will writers
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