Leaving People Out – Challenges To The Will
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Want to make a start on your will?
Making a Will is not about wealth it is about making sure that what you want to happen to your estate does happen. It gives you the opportunity to specify such things as who will administer your estate, who will care for your children and who will receive specific items of your property.
Contrary to the impression frequently given in popular TV programmes and stuff you read online – works of fiction it is actually quite difficult to challenge the validity of a will. Mere dislike of the contents is not enough.
It is necessary to prove one of the following:
1. The testator was not of sound mind.
2. Lack of knowledge and approval of the contents of the will by the testator.
3. Undue influence or fraud.
Unsound mind
In order for testamentary capacity (i.
e. the ability to make a valid will) to be established, three things must exist at the same time. These are:
1. The testator must understand and be aware of the nature and extent of the property he owns.
2. The testator must understand that he is giving his property by will to one or more people or causes.
3. The testator must also understand the nature and the extent of the claims upon him both in respect of people he is including in the will and those he seeks to exclude.
These conditions must exist both when he gives instructions for the will and when he signs it. Even so, if the testator’s mental condition deteriorates between giving instructions and executing the will, it is sufficient to show that he understands he is executing the will in respect of which he previously gave instructions.
It must be shown that the will has been drawn totally in accordance with the instructions and that the testator understands that he is signing a will made according to those instructions even if he can no longer follow every detail.
It is, of course, essential that the testator understand he is signing a will. To quote Cockburn CJ in Banks v Good fellow (2010):
`It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties £ that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
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So what if the disappointed beneficiaries wish to claim you were not of sound mind when you excluded them from your will? The Probate Registry will admit to probate any will which is rational on its face and executed correctly. No proof of capacity is requested unless the testator’s capacity is challenged. The presumption is that the testator was sane.
However, once sanity has been contested, the burden of proof shifts to the person seeking to propound the will, i.e. the person applying for the Grant of Probate.
Further reading – Leaving People Out – Example or Leaving People Out – Lack Of Knowledge And Approval Of The Will’s Contents
- external sites: HM Revenue & Customs: Taxes, National Insurance and Stamp Taxes