There are a number of grounds upon which a Will can be disputed.
For a Will to be valid and beyond dispute, the person making the Will must have what lawyers call testamentary capacity. In other words he or she must have sufficient mental competence. The phrase “sound mind, memory and understanding” is often used. Mental incapacity can arise as a result of mental disability but the mere fact that someone is mentally ill does not necessarily mean they lack testamentary capacity. To ascertain whether someone has testamentary capacity is often a difficult and lengthy exercise. It is usual for a Will dispute concerning lack of mental capacity to require the involvement of a medical practitioner. The courts will also consider non-medical evidence including relationships with family and friends and the contents of previous Wills. If it can be proved that the testator did not have testamentary capacity then the Will which is the subject of the dispute is likely to be declared invalid.
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Another common cause of Will disputes is undue influence
A person must be free to make their Will voluntarily. If someone is compelled or coerced into signing a Will then it will be invalid. Lawyers refer to such force as undue influence or duress. If proved then thedisputed Will is likely to be declared invalid. A Will dispute involving undue influence can be difficult to win and clear evidence of the undue influence is required.
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Many Will disputes centre on issues of procedural validity.
For a Will to be valid it must be in a proper form in accordance with section 9 of the Wills Act 1837. If these requirements are not followed then the Will could be invalid. For instance, a Will should be in writing and must be signed and witnessed correctly by two independent witnesses. Will disputesoften arise from home made Wills which have not been prepared correctly. The growth of cheap internet Wills is also leading to an increase in the number of will dispute claims.
LACK OF KNOWLEDGE AND APPROVAL
Some Will dispute claims revolve around whether or not the testator 'knew and approved' the contents of the disputed Will. Generally, this will be presumed if the Will is properly executed and the testator had capacity. However, Will disputes can arise where a beneficiary has been involved in its preparation and there is a real concern that the testator may not have had the requisite knowledge and approval of the Will he was executing.
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If someone is tricked into signing a Will then it will not be valid. Although fraud isn’t widespread, it is not uncommon and a steady stream of cases make their way before the courts each year. This type ofWill dispute can take many different and bizarre forms. There have even been cases of impersonation, where people call in an unwitting solicitor and pose as the testator. Executors therefore have to be vigilant and if fraud is suspected, solicitors specialising in disputed Wills should be instructed to investigate immediately.
Call our Will dispute helpline if you are in any doubt.
If you wish to dispute a Will or have any queries regarding a disputed Will then call our free helpline on 0808 139 1599