Wills + Probate: When might a Will not be valid?

If a deceased person has made a Will in their lifetime, it is not necessarily the case all of the relevant elements will be in place so as to consider it legally “valid”. Whilst it is absolutely the case everyone, in my view, should make a Will, as the alternative of a distribution of a deceased estate under the rules of intestacy may cause more problems, Wills can be made under circumstances which cause concern, and which invite investigation.

Increasingly my colleagues and I are seeing more and more instances of such concerns being raised, the question is what can you do about it? Whilst it is possible, subject to certain factors, to contest an estate under what is known as an Inheritance (Provision for Family and Dependents) Act 1975 claim (“the Inheritance Act”)*, this article addresses specifically how a Will itself may be challenged.

Actual or Formal Validity?

“Formal” validity is the necessity, legally, for a Will to be executed in a specific way, per the terms of the Wills Act 1837. Essentially the person making the Will must have their signature witnessed at the same time by two independent witnesses who also sign to confirm. If the document plainly looks like it is a Will, is seeking to dispose of a person’s assets on death, and if no issues are raised it may be ultimately used to administer the deceased estate. BUT…..should anyone disagree the Will is correct or should not be used, such person or persons would have to consider “Actual validity” and the grounds to potentially challenge on that basis.

1. Lack of Mental Capacity

Actual validity requires a deeper dive in the all the circumstances surrounding when and how a Will was made. Was it prepared by the deceased themselves? Or via a friend maybe, or via Solicitors? But critically there must be 3 elements in place to satisfy Actual validity, 1) the deceased must not have been coerced or unduly influenced into making the Will, 2) the deceased must have had actual knowledge and approval of the Will document and 3) the deceased had to have the requisite mental capacity. There is a test for what mental capacity in Will making should be, subject to rules laid down in a famous Court case, Banks v Goodfellow [1870].

Mental capacity can be prohibited by various illnesses. The most obvious scenario perhaps being a diagnosis of dementia, or similar illness which affects memory and understanding. A diagnosis of this sort could invalidate a Will, but not necessarily, as a full and detailed review of the deceased medical records coupled with an expert’s report may confirm understanding. These issues are complex, so an early review of medical records and early instruction of an expert would be critical.

2. Undue influence

To claim undue influence was prevalent at the time a will was made can be rather difficult, as influence exerted over an individual by someone else can take different forms, and over considerable time. Rarely is one event the specific “trigger”. Evidence of those who knew the deceased and may have witnessed disturbing events again would be critical to obtain at an early stage.

The line between influence and undue influence can be fine, and often complex to unpack. Put simply, you would be arguing someone influenced the deceased to make a decision/ decision about their Will they would otherwise not have made. Often this can be for personal gain of the individual influencing the now deceased. This has to be proven with evidence.

3. Lack of Knowledge and Approval

Different to a lack of mental capacity, you would be seeking to prove the deceased did not fully comprehend the actions they were undertaking when making their will. This may have been because they simply didn’t understand the complexity of the Will, or it was not explained properly to them by whoever was drafting it.

If an individual has drafted a Will for themselves, personally, or if a friend or acquaintance did it, and they were not legal qualified, they may not have fully considered its effect. Did the individual fully understand what their estate comprised of when making their will? Would they understand the impact their will was going to have perhaps in terms of tax?

If Solicitors were involved in the preparation of the Will, their file should provide details of the questions and answers to the above, or provide evidence or issues which need to be investigated further. Solicitors files may be requested for review, but where a deceased has not relied on professionals the lack of information can be a huge problem

Conclusion

This article is designed to provide a pure “taster” of the kinds of issues and problems which can be faced by families and friends of a deceased when a Will comes to light after death and the provisions may be either not what was expected, or creates a huge financial problem or even family rift.

If you experience such issues it is essential to move quickly and obtain advice as soon as possible before assets are sold or transferred and opportunities then are missed. Please contact us on 01761 414 646 or enquiries@th-law.co.uk if you would like to make a free no obligation appointment with one of our experts.

About the author:

Alexandra Porter specialises in Contentious Estates at Thatcher and Hallam LLP Alexandra Porter – Thatcher + Hallam Solicitors contact via email aporter@th-law.co.uk
(*see future articles by our contested estates team)