Frequently Asked Questions

• How can the validity of a will be challenged?

  Common reasons why a will might be invalid are;

  1. The testator did not have mental capacity to make the will;
  2. The testator was subject to undue influence when making his/ her will;
  3. The testator did not understand/ have full knowledge of the terms of the will or did not approve the contents (want of knowledge and approval)
  4. The will was not written and/ or signed in the correct way (formal validity)

  A will or clauses in a will can also be invalid if it is not possible for the executor (or the court) to interpret what the testator meant or clauses can be invalid because items gifted no longer exist or the beneficiaries of those gifts no longer exist.  For more information on problems arising from poorly drafted wills or the interpretation of wills click here

  Capacity

  In order to make a will, a testator must have the mental capacity to do so.  One of the most common grounds for challenging a will is to claim that the testator did not have capacity when the will was made.   If the testator did not have capacity, the will is invalid.

  For more information on capacity to make a will (testamentary capacity) please click here

  Undue Influence 

  A will, or part of a will, can be invalid if the testator was put under undue influence when they made the will.     

  Undue influence is difficult to establish – it is more than mere influence or pressure – it must be such strong influence as to effectively amount to coercion such that the testator could not be said to have been acting under his/ her free will when the will was made.  Undue influence tends to arise in cases involving elderly or vulnerable testators and will often be argued alongside a claim that the testator did not have capacity to make the will.  lt is for the person seeking to argue that the will is invalid to prove the existence of undue influence and good evidence is required.  It is not likely to be sufficient to show a relationship where undue influence could occur – specific examples of undue influence being exercised will be required.   Such influence may be evidenced over a period of time (a slow ‘grinding down’ of the will of the testator) or may be over a shorter period of time involving (perhaps) blackmail or threats. 

  Want of Knowledge and Approval 

  A testator must have known and approved the contents of his will when the will was signed.  It is for the person wishing to prove the will (the executors) to show basic evidence of knowledge and approval (so the onus of proof rests with the executor here, unlike in cases of undue influence or lack of capacity where the onus rests with the person wishing to challenge the will).  Where a will is drawn up and signed with a professional will writer present, there will be a presumption of knowledge and approval.   It would be rare for a testator who has capacity to lack knowledge and approval and so the two allegations tend to go together. 

  It is important for a professional will writer to record the meeting at which both the instructions for the will were given and the will was signed as well as evidence the will being explained to the testator before it is signed.  

• What are the rules for making and signing a valid will?

  There are strict rules about how a will must be made and signed and if those rules are broken, either the whole of the will or part of the will could be invalid.    This means that either the whole of the will, or the invalid part, will fail.   

  A will can also be invalid if the testator (the person who made the will) did not have the mental capacity to do so.   The test for whether someone has mental capacity to make a will is complicated but put simply the person making the will must be able to understand broadly what assets they own and their value, who they should consider including in their will (for example who their close family are) and the effect of the will that they are making.  If it can be proved that when the will was made the testator did not have capacity, the entire will may be invalid and fail.  If you are worried about whether someone has capacity to make a will (or there is any doubt), a medical opinion should be sought at the time that the will is made.  Instructing a solicitor to help draft the will is also important as they will also assess capacity and keep clear notes.

  The other way in which a will (or part of a will) might be invalid is if the testator was put under undue influence when they made the will.   In other words, if a will (or a gift within a will) is made because someone (the beneficiary most likely) is applying serious pressure on the testator, such that the testator is no longer able to think or act freely.   Undue influence is difficult to prove and is often caught up in the issue of capacity.  

  One thing to consider is what will happen if the will (or part of it) is invalid? Broadly speaking, if there was an earlier valid will this will likely stand or if there is no will the rules of intestacy will apply. 

• What happens if a will is not valid?

  If a will is successfully challenged and found not to be valid, the will does not stand and cannot be put to probate (or if it has already been put to probate, probate will be set aside).   If there was an earlier, valid will the earlier will replaces the later invalid will.  If there was no earlier will, the rules of intestacy will apply because there will be no valid will.  For more information on intestacy click here

• What does it cost to challenge a will?

  How much it costs to challenge a will depends upon the grounds for challenge and whether a claim can be resolved at an early stage.   We will discuss the likely costs with you and whether the likely value of a claim justifies the costs involved.  We are able to offer flexible funding arrangements to help you fund your claim including full or partial conditional fee agreements.

• How much does it cost to defend a will which is challenged?

  This will depend on how complex the claim is and how long it takes to defend.  We can discuss the likely costs involved with you and we can offer flexible funding arrangements including delayed and reduced fee arrangements to enable you to settle your fees when the case is resolved and you receive your inheritance.  We will advise honestly as to your best option for defending cases whilst preserving as much of our inheritance as possible. 

• Who should defend a claim that a will is not valid?

  Ordinarily it is for the beneficiaries of the will to defend a claim because they are the ones who have an interest in the outcome of the claim.  Of course, it is often the case that the executors and beneficiaries are the same people.  However, as an executor you must remain impartial over such claims.  Your role in ‘defending’ a claim against the will is limited but you will require professional advice to ensure that you take appropriate steps and do not do anything to adversely affect the claim or create avoidable costs. So long as an executor remains impartial and acts reasonably, they should recover their legal costs involved in dealing with a claim from the estate.   

  There are some circumstances where an executor must defend a claim perhaps on behalf of minor or mentally incapacitated beneficiaries (where there is no one else able or willing).  In such cases it is important to take steps to protect you position on costs as far as possible.  Advice should be taken as early so that the most appropriate course of action can be taken. 

  Disputes against a will or an estate can arise for other reasons also including claims under the Inheritance Act.  For more information on Inheritance Act claims click here