Wills are complex documents and strict rules apply to ensure they are valid. A successful validity claim will result in a declaration that the Will in question is invalid and, if there is an earlier valid Will, the estate will be distributed in accordance with that Will. If not, the estate will be distributed in accordance with the intestacy rules.
If a loved one has passed away leaving a Will and you believe any of the following circumstances apply, you may have a validity claim:-
Lack of Intention
Quite simply, a Will only operates as a Will if the person making it intends it to do so. Without this intention, despite a document having the appearance of a Will, it will not be valid.
Lack of Due Execution
A Will must be signed in a specific way for it to be valid. Failure to follow these strict rules will invalidate a Will. This is a common problem with homemade Wills.
Lack of Capacity
A persons capacity to make a Will is established by ascertaining that they:-
1. understand that by the document they are signing they are giving their property to person of their own choosing on their death;
2. know the extent of their property;
3. understand the nature and extent of their obligations to relatives and others, particularly those financial dependant upon them; and
4. are not suffering from any delusion of the mind.
A person must have a high level of mental capacity and understanding to make a Will. If a loved one made a Will at a time when they were unwell, confused and/or heavily medicated there may be issues with capacity.
Lack of Knowledge and Approval
A person must know and approve the content of their Will for it to be valid.
Undue Influence and Duress
A person must make a Will free from pressure and of their own volition. Pressure can range from actual force and violence to applying a small amount of pressure to someone who is particularly weak and unwell, but the important factor is whether this pressure amounted to coercion. Coercion has the effect of overbearing someone’s free will, persuasion is not sufficient to invalidate a Will. An allegation of undue influence is serious, so the level of evidence required for such a claim is extremely high.
Fraud and Forgery
An example of circumstances falling under this heading would be if A prepared a Will, unbeknownst to the B, leaving the majority of B’s estate to A. The distinction between a forgery claim and a lack of knowledge an approval claim is that dishonesty is required for fraud. An allegation of fraud or forgery is extremely serious and as such the evidence required to bring such a claim is incredibly high.
So what should I do if I think I have a claim …………
Contact Amy Kernohan at WBW Solicitors for a free initial consultation