Validity of a Will

A will may be considered invalid under various circumstances. If deemed invalid, the estate would be administered according to a previous valid will, or if none exists, under the rules of intestacy. Several grounds can be used to challenge a will, often simultaneously:

Challenging the validity of a will based on testamentary capacity involves proving that the individual did not have the mental capacity to create the will at that time. The test set out in Banks v Goodfellow (1870) requires proving that the person:

1. Understood the nature and effect of the act.
2. Understood the extent of their assets.
3. Appreciated the claims to which they ought to give effect, without any disorder of the mind that could influence their decisions improperly.

If these criteria are not met, the will may be deemed invalid.

The execution of a will involves its signing and witnessing. For a will to be validly executed, the requirements of s9 of the Wills Act 1837 must be met, including:

1. The will must be in writing and signed by the testator or testatrix (or, in certain circumstances, by another person in their presence and on their behalf).
2. The person making and signing the will must intend to give effect to it.
3. The signature must be made or acknowledged by the testator or testatrix in the presence of two or more witnesses.

Failure to meet these requirements may render the will invalid.

A challenge on this ground asserts that the testator or testatrix did not know or approve the contents of their will at the time of its execution. Unlike a testamentary capacity challenge, this does not question the person’s mental capacity but their understanding of the will’s contents. Proving this involves examining the circumstances surrounding the creation and execution of the will.

Claims of fraudulent calumny arise when the testator’s or testatrix’s mind has been “poisoned” against another individual, leading to their exclusion from the will. Establishing this requires proving that false and malicious statements influenced the decisions of the deceased during the will’s creation.

Proving a will is invalid due to undue influence involves demonstrating that the testator’s free will was compromised, and they were pressured or manipulated into disposing of their estate contrary to their true wishes. There is a distinction between persuasion, which does not invalidate a will, and undue influence, which, if proven, likely will.

A will is invalid if it involves any form of forgery, such as a fabricated signature or someone impersonating the testator during the will’s preparation.

By understanding and addressing these potential issues, we provide comprehensive support in resolving will, trust, and probate disputes.