The advantages in making a will are obvious but are nevertheless worth stating. If you make a will you get to decide without any ambiguity who gets what after you die. Though there are avenues of appeal for those who feel they have a claim against a will, through the Inheritance (Provision for Family and Dependants) Act 1975, those making a will should also help avoid unnecessary arguments among family members.
There are five main ways in which a will can be challenged through the 1975 act and these are:
- Forgery or fraud
There have been cases where a court of law has decided that a seemingly valid will is actually a fake. There was the case of Leonard Supple, who left an estate worth £18m leaving just £100 a year to his son, while the rest was given to his illegitimate daughter. The judge in the case ruled that it was a forged will and therefore, in effect the deceased man had died intestate, so the estate was subsequently divided equally between the two children.
- Undue influence
The person alleging that undue influence has taken place in the making of the will has to satisfy, not only that the person alleged of having done so had the power to overbear the will of the testator, but also that this power was exercised and this was how the will was obtained. Naturally, there is less chance of undue influence being an issue if the will has been prepared by a solicitor or if it can be shown that the writer was acting of their own free will.
- Testamentary capacity
This type of challenge considers the testator’s mental capacity to make a will at the time it was signed and witnessed. To have the required capacity the person making the will must understand the nature of it, they must have an idea of their estate and who would stand to benefit in the event of their death. Again, this is less likely to be the grounds for a challenge if the will was drawn up by a solicitor or was witnessed by the doctor of the testator.
- Knowledge and approval
This challenge is similar to testamentary capacity and is based on the testator not knowing or approving the contents of the will. This will be generally assumed where the will has been properly executed and the person concerned has testamentary capacity. However, there are circumstances where challenges are brought on this ground, often where a beneficiary has played an active role in the preparation of the will and there are fears that the testator did not have the required level of knowledge and approval.
- Due execution
The Wills Act 1837 provides the rules a will have to abide by in order to be valid. It must be:
i - in writing
ii – signed by the testator
iii – witnessed by two or more people present at the same time
If these formalities are complied with then the will shall be presumed to have been duly executed. The witnesses should actually have witnessed the signings and should not be beneficiaries of the will. Therefore, challenges under due execution tend to be based upon the witnessing of the will and whether it has been carried out according to the requirements of the Wills Act 1837.