- Testamentary capacity;
- Lack of valid execution;
- Lack of knowledge and approval;
- Undue influence; and
Lack of Testamentary Capacity
The case of Banks v Goodfellow (1870) set out that, for a will to be valid, a person must:
- understand that they are making a will and the effect of that will;
- know the nature and value of their estate;
- understand the consequences of including and excluding certain people under their will; and,
- not be suffering from any ‘disorder of mind’ which may influence their views. For example, if the testator made gifts which they would not have made had they not been suffering from that disorder.
Lack of Valid Execution
(also known as ‘lack of due execution’)
A will is invalid if it fails to meet one or more of the following requirements (as set out in s.9 Wills Act 1837):
- The will must be in writing and signed by the testator or signed by someone else in their presence, who has been directed to do so by the testator.
- It must appear that the testator intended by their signature to give effect to the will.
- The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time.
- Each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness.
- The legal presumption is that a will has been validly executed unless there is evidence to the contrary such as doubts over any of the above factors.
There are also strict rules about who can and cannot witness a will.
Lack of Knowledge and Approval
A person must have knowledge of, and approve of, the content of their will. They must know that they are signing a will, and approve of its contents.
It must be shown that the testator was not aware of the content of the will or that there were suspicious circumstances.
To prove that a person was unduly influenced, coerced or under duress when making a will you must show ‘actual undue influence’.
The evidence needed to prove undue influence must be of a high standard, to the extent that there is no other reasonable theory to explain the terms of the will.
If you believe that a person has made a will as a result of significant coercion by another person or you are facing such a claim, our solicitors can help.
You are able to contest a will if you believe it was forged or fraud has taken place.