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There are two main ways of contesting a Will. The first one is to challenge the validity of the Will and the second way is to consider making a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
For a Will to be valid, there are various factors that need to be considered, as set out below:-
- The person making the Will has to be over 18 (unless it is a privileged Will).
- There needs to be mental capacity.
- The person must intend to make a Will.
- The person must know and approve its contents.
- The person must make a Will without any undue influence.
- The Will must be free from fraud or forgery.
- The Will must comply with the formalities of section 9 of The Wills Act 1837.
For a Will to be valid, the person must be over 18 (unless the Will is privileged). The person must also have sufficient mental capacity. The test of mental capacity is a legal test, not a medical one. The test is covered within the classic case of Banks –v- Goodfellow (1870). That case stated that for a person to have sufficient mental capacity, they must be aware of the nature of the act and its effect (what a Will is and where they have got sound mind). They must also be aware of the extent of their property (a general understanding of their assets and sound memory). They must also comprehend the claims that they intend to give effect (in other words be aware of their potential beneficiaries and be of sound understanding). There must also be no disorder of the mind that might adversely affect the outcome of the Will.
Most solicitors and decent lawyers when making a Will, will be aware of The Golden Rule which is covered in the case of re Simpson in 1977. That case states that if a testator is aged and/or is suffering from a serious illness, then the Will must be witnessed and/or approved by a medical practitioner.
The person making the Will must intend to make a Will and be aware that the Will will only take effect on death.
A person making a Will must know and approve of the contents of the Will. Now they don’t need to know absolutely every effect and consequence but they must have a reasonable level of knowledge. Knowledge and approval is not assumed if the person making the Will is blind, dumb, illiterate or if there are suspicious circumstances or if there is a mistake in the Will.
The person making the Will must not be unduly influenced. If an allegation of undue influence is made, it must be proved. Coercion and pressure that overcomes the free will of a person making a Will can be regarded as undue influence. However, general persuasion is generally regarded as satisfactory.
While the Will must be free from fraud or forgery, this is fairly self-explanatory.
The Will must comply with section 9 of The Wills Act 1837. In other words it must comply with the following:-
- The Will must be in writing and signed or marked by the testator or some other person in his presence.
- The testator must intend his signature to give effect to the Will.
- The testator must have signed or acknowledged the Will in the presence of two witnesses.
- The witnesses must sign or acknowledge the Will in the presence of the testator.
Privileged Wills are Wills made without the formalities of the Wills Act 1837 and usually relate to soldier, airmen or seamen on active military service. They are quite rare.
My name is Adrian Chambers. I am a lawyer who specialises in creating and preparing Wills.
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