How to challenge someone else’s will?
Invalidity
All wills must comply with the Wills Act or they will be invalid.
For a will to be legally valid, the testator (will-maker) must:
- be 18 or over
- make it voluntarily
- be of sound mind
- make it in writing
- sign it in the presence of 2 witnesses who are both over 18
- have it signed by 2 witnesses, in their presence
The testator must either sign in the presence of two witnesses or acknowledge to the witnesses that it is their signature on the will. Each witness must then sign the will themselves. They also need to give their name, address, and occupation. However, they don’t have to read the will or know what’s in it.
The testator and the witnesses must sign the same document. When the testator signs their will, both of the witnesses must have a clear view of them and the act of signing. A testator can ask someone to sign on their behalf if they are unable to do it themselves. When the witnesses sign the will, the testator must have a clear view of them and the act of signing. If any of these rules are not complied with the will is invalid and fails.
The burden of proof that the will is invalid lies with the contestator who is challenging the will.
Undue Influence
A testator must not have been subjected to undue influence when making their will i.e. they must not have been pressurised to make or change their will. The burden of proving that a will-maker was subject to undue influence is with the person who is challenging the will and it is necessary to have evidence in support e.g. statements from people in the will-maker’s everyday life, as well as experts, such as GP’s.
Forgery
This is when a signature is altered or forged or when a will has been destroyed. One of the most common allegations of fraud is that the signature on a will is a forgery. To successfully argue that a signature on a will has been forged it is usually essential to obtain expert handwriting evidence to support the allegation. The handwriting expert will look at examples of the testator’s handwriting and compare these to the handwriting and signature on the will. They may also be able to use forms of testing on the will to see if the signature is genuine and made on the date it was supposed to be.
A will could also be fraudulent where a person makes provision for a beneficiary on the basis of someone telling them lies and misrepresenting the true position so that the beneficiary inherits, often at the expense of someone else. Another example of fraud would be where a person makes a will pretending to be someone else. In that situation the signature on the will would also be a forgery.
Contact our Private Client Solicitors
If you have any enquiries in relation to making a will or challenging someone else’s will, please contact our private client solicitor on 020 8240 9018 or submit the enquiry form on our website.