As part of the process of contesting a will, you will need to make sure that you can successfully challenge the validity of the will. The usual grounds upon which the validity of a will can be challenged are:

1. it doesn’t comply with the formality requirements;
2. the person making the will lacked the necessary capacity;
3. the person making the will did not know of or approve the terms of the will; and/or
4. the person was coerced into making a will they otherwise wouldn’t have made.

The grounds for contesting a will

1. Formalities

In order to be valid, a will must comply with the requirements set out in Section 9 of the Wills Act 1837. Those are:

1. that the will is in writing and signed by the person making the will (known as “the testator”), or by someone else on their behalf, in their presence and at their direction;
2. that the testator intended to make a will;
3. that the testator’s signature is witnessed by two witnesses who are present at the same time; and
4. that the witnesses then sign the will in the testator’s presence.

2. Testamentary capacity

The testator also needs to have the necessary capacity to make a valid will at the time it is made. This is known as “testamentary capacity”.

In terms of the legal test for testamentary capacity, this is based upon a very old case called Banks v Goodfellow (1870). The key aspects of that test are that:

1. the testator knew that they were making a will and what the effect of doing so would be (i.e. it would determine how their estate was dealt with when they died);
2. the testator understood the extent of their estate;
3. the testator could comprehend and understand the claims against their estate that ought to be taken into consideration (i.e. who would or could be expecting to inherit); and
4. there was no “disorder of the mind” from which the testator was suffering that could “poison their affections or pervert their sense of right”.

Whilst, in recent years, some cases have referred to the provisions of the Mental Capacity Act 2005, which largely determines whether someone has the necessary capacity to make specific decisions about their lives and their affairs, the courts have confirmed that it is the Banks v Goodfellow test which continues to apply in relation to the validity of a will.

3. Want of knowledge & approval

The next ground is quite close to that of testamentary capacity but is very much a specific and separate ground.

Usually, this ground is used where:

1. there is a mistake in the preparation of the will which is then missed or not understood by the testator;
2. the testator suffers from a particular condition, such as being blind, deaf, dumb, illiterate, or without English being their first language; or
3. the circumstances surrounding the will excite suspicion.

A good example of this ground in practice comes from the case of Buckenham v Dickenson (2000). In that matter, the testator was very deaf and partially blind. His second wife gave instructions to the solicitor for a new will to be prepared for the testator. When the solicitor had drafted the will, they then simply asked the testator to confirm the instructions provided to them by the second wife, before then reading the will out to the testator prior to it being signed.

In this case, the court found that there was no question that the testator was capable of understanding that they were making a will (and so had testamentary capacity), but there was nothing to show that the actual contents of the will had been made clear to him, nor that he had properly approved the same before signing it.

4. Undue influence

The final ground is known as undue influence and is probably the hardest ground to establish.

It applies where a third party has exerted undue influence over a testator, which results in a will being made that they would otherwise not have made.

To succeed with this ground, it must be shown that the testator’s “volition” was overpowered.

Indeed, it has been made clear in past cases that there is a distinction (albeit a very thin line) between what is known as legitimate persuasion and coercion, which is considered to amount to undue influence.

The court said in the case of Hall v Hall (1868) that “Persuasion is not unlawful, but pressure of whatever character if so exerted as to overpower the volition without convincing the judgment of the testator, will constitute undue influence, though no force has been either used or threatened”.

We are here for you

If you wish to contest a will, or you are an executor or beneficiary who is facing a challenge to the validity of a will, then please contact our Contested Wills, Trusts and Estates Team on 01823 625841.

We handle a variety of disputes and issues surrounding wills and estates. Further, we are able to offer high quality, cost-effective legal advice on such matters, with flexible funding arrangements such as Conditional Fee Agreements (i.e. No-Win, No-Fee arrangements) also being available.