Capacity, undue influence, not understanding the Will, defective signing, fraud
Even where someone dies leaving a Will, concerns may arise as to whether the Will is valid?
If there are concerns about a Will it is important to act quickly before probate is granted. A document called a Caveat can be filed with the Probate Registry to prevent probate being granted. That is inexpensive action to take and allows breathing space for an investigation into the concerns.
A claim can be made after probate, but it will be far more expensive to pursue and there is the risk of the estate being distributed.
When someone executes a Will one of the key requirements is that they understand:
- That they are making a Will and the consequences of that document
- The nature / extent of their estate
- The claims of those who might expect to benefit under the Will.
Difficulties arise where at the time of the Will being signed there may for example be a degenerative mental condition, such as dementia or other mental illness or incapacity. This does not mean that a Will cannot be validly executed, but great care needs to taken by those preparing and assisting in the execution of the Will. This is a complex area, which requires experience of the relevant law and medical issues.
Where a Will has been made under the undue influence of another it will be invalid. Raising an allegation of undue influence is a serious matter which the Courts require to be proved with very clear evidence. We understand that such allegations need to be handled with sensitivity, whilst ensuring robust evidence is gathered / evaluated, depending on if we are bring or defendant a claim.
Not understanding the Will
This is known as “want of knowledge and approval”. This type of challenge may arise where the person making the Will didn’t understand the terms or where there are language issues.
We can investigate if the contents of the Will properly reflect what the person signing it thought would be the effects of the document. This will involve gathering in evidence in relation to both the advice and drafting of the Will and also witnesses who may assist in explaining any inconsistencies.
There are well established rules about the method of signing a Will, but sometimes that can go wrong. Examples are that the witnesses are not in the room together or the witnesses or their spouses are beneficiaries under the Will.
A Will is invalid if forged or made as a result of fraud. There is also a form of fraud specific to Will disputes called “fraudulent calumny”, which in plain English means poisoning someone’s mind about someone who might otherwise have been a beneficiary.