Family members and beneficiaries of an estate may challenge the validity of a will.

In fact, under certain circumstances, it is possible to argue that the testator lacked the required capacity to make a will or was subject to undue influence when doing so.

In general, before a court will declare a will invalid, one of the following grounds has to be proven:

1. Lack of testamentary capacity or intent;
2. Failure to meet the formal requirements for a valid will;
3. Lack of knowledge and approval of the will’s contents by the testator;
4. Fraud;
5. Undue influence;
6. Forgery.

1. Lack of Testamentary Capacity or Intent

To be valid, a testator must:

• Understand the nature and effect of making a will;
• Understand the extent and nature of the property they are disposing of;
• Understand and appreciate the potential claims of others.

If it is believed that the testator lacked mental capacity either when preparing or signing the will, the will may be declared invalid.

Initially, the burden is on the party challenging the will to raise doubts about the testator’s capacity.

The following evidence may be used to assess capacity:

• Instructions given to the professional who drafted the will, as well as other documents such as notes from meetings with the testator;
• Statements from witnesses present when the testator signed the will;
• Relevant medical records; and
• Any evidence regarding the testator’s conduct and health at the moment they made the will.

2. Failure to Meet the Formal Requirements for a Valid Will

A will must comply with the requirements set out in Section 9 of the Wills Act 1837, which are:

• The will must be in writing;
• It must be signed by the testator, or by someone else in the testator’s presence and under their directions;
• It must appear that the testator intended to give effect to the will by signing it;
• The signature must be made or acknowledged in the presence of two or more witnesses present at the same time, who must attest and sign the will in the presence of the testator.

3. Lack of Knowledge and Approval of the Will’s Content

The testator must have knowledge and approve the contents of the will. A will that has been properly executed is presumed to have been known and approved by the testator.

A lack of knowledge and approval may occur due to fraudulent changes or mistakes in the content of the will.

Those challenging the validity of the will must raise and prove the existence of suspicious circumstances in its execution.

Conversely, the person seeking to uphold the validity of a will must prove that the testator knew and approved its content.

4. Fraud

Fraud may involve a beneficiary misleading the testator to obtain an unjustified benefit or preventing another person from receiving one. The alleged conduct must directly influence the testator for the purpose of securing or denying a benefit.

Fraud entails misleading or deceptive behaviour that implants false or illusory beliefs in the mind of the testator.

The burden of proof lies with the party alleging fraud.

A typical example is leading the testator to believe they are signing a document that is not a will or inducing the testator to make a will they would not otherwise have made.

5. Undue Influence

While fraud seeks to deceive, undue influence involves coercing the testator into doing something they would not otherwise do.

To prove undue influence, it is necessary to show coercion rather than mere persuasion. This can be psychological or physical and must lead the testator to create a will that does not reflect their true intentions.

Undue influence can render a will, or part of it, invalid. For example, a specific gift may be voided while the rest of the will remains valid, provided the remaining terms reflect the testator’s genuine wishes.

A key difficulty lies in producing sufficient evidence of a decision made under undue influence.

English probate law does not presume undue influence from specific relationships with the testator.

Courts have traditionally been reluctant to invalidate wills without solid evidence, particularly in cases involving allegations of fraud or undue influence. Many such claims, often motivated by self-interest, have proven baseless.

6. Forgery

There must be direct evidence that the will was not signed by the testator and was forged.

The professionals at Ascheri Group can provide clarifications or explore specific situations in more detail. For more information or to request a quote for an initial online consultation, you can contact us at info@ascherigroup.uk.