What Are The Main Grounds For Challenging A Will?

Jan Samuel

The main grounds for contesting a will are:

  • Lack of capacity to make a will;
  • Undue influence;
  • Lack of knowledge and approval; and 
  • Fraud

What is lack of capacity?

A  person does not have capacity if they are suffering from an illness or injury which means they cannot understand the nature and content of their will, or their property. In addition, the person making the will should also be capable of understanding who might have a claim on their estate. 

Where a will is invalid for lack of capacity, it will be held invalid. The previous will made by the deceased will be used (provided that they had capacity when they made that). If there is no previous will, then the intestacy rules would apply.

What is Undue Influence?

If someone else (sadly often a family member) pressurises someone into putting particular provisions in their will, then it could be held invalid because of undue influence. This is also sometimes known as coercion. 

Undue influence can happen when an elderly person is bullied or forced to draft their will in a particular way. If the court decides that the undue influence has altered the way in which the will has been drafted, then it should be held invalid.

What is Lack of Knowledge and Approval?

Lack of knowledge and approval can be a ground for contesting a will, particularly if there is not sufficient evidence to prove undue influence. If there is reason to suspect that the person making the will did not know about or approve the content of their will, then it can be held invalid. 

An example would be where an elderly person produces a will which radically changes a previous will, with very little rational explanation.

What is Fraud?

The most obvious way in which a will can be challenged is if it is a fake - if the will has been drawn up and/or signed by someone other than the testator, then fraud will have been committed. It is not uncommon for the police to be involved if a fraud has been committed. 

If you think there are reasons for you to challenge a will, contact us today to see how we can help. We have helped many clients recover their inheritance, where a will has been open to challenge.