A will can be contested, or disputed, based on one of the following grounds:
- Invalid Execution
- Lacking Testamentary Capacity
- Lack of Knowledge and Approval
- Undue Influence
- Fraudulent or Forged Wills
- Rectification and Construction Claims
In order to claim that a will is incorrectly executed, one or more of the following requirements was not met:
- The testator, the person making the will, must construct the will in writing and have signed it, or direct another to sign it for them.
- It must appear that the testator intended by their signature to give effect to the will.
- Two must sign and attest that the testator signed the will or directed another to sign on their behalf.
- The two witnesses and the testator must sign in the presence of one another.
Lacking Testamentary Capacity
A person must be considered “of a sound mind” in order to create a valid will. The legal test to determine if a person is of sound mind comes from the 1870 case – Banks v Goodfellow. To be of sound mind a person must:
- Comprehend that they are making a will and the effect of the will,
- Know the nature and the value of their estate,
- Understand the consequences of including or excluding an individual under their will, and
- Cannot be suffering from any disorder of the mind that could alter their views or understanding.
Lack of Knowledge and Approval
A claim for lack of knowledge and approval can be made if there is suspicion that the testator was not aware of, or would approve of, the content of their will. Even if the will was validly executed and the testator was of sound mind, a claim of lack of knowledge and approval can still be made. An example of this claim would be if there was a large or valuable gift left to the individual who helped prepare the will.
Undue influence means that a person was coerced, under duress, or otherwise improperly influence during the writing of their will. In order to prove that the testator was unduly influenced, you will have to prove “actual undue influence”. The evidence must be of high standard and there must be no other reasonable theory to explain the content of the will.
Estates of elderly relatives may come into question if the will was changed shortly before their death to remove their beneficiaries and include someone new as the beneficiary. Also, any legal document, including a Last Will & Testament is invalid if the testator is coerced into creating or signing the will.
Fraudulent or Forged Wills
Wills are protected against fraud and forgery alike. If a family member creates and signs the wills as if they are the testator, then the will is invalid on the grounds of forgery. If someone lies to the testator about a potential beneficiary and that lie leads to the beneficiary being excluded under the will, then the will can be found invalid because of the fraudulent lie.
Rectification and Construction Claims
This claim may be made if the instructions in the will are unclear – whether due to a clerical error or because the individual drafting the will did not understand the testator’s final instructions. Ambiguous wording may need the court to determine the meaning of the will.