Following the death of a person, the administration of their estate and finances can be a difficult time for all family members involved. It is of utmost importance that the wishes of the deceased should be upheld where possible.
However, there are occasions where family members suspect that the will does not mirror the true intentions of the deceased and in those instances, there are avenues available for contesting an executed will.
Contentious probate refers to any dispute that arises in relation to the administration of an individual’s estate when they die. This article will explore the grounds for contesting a will.
There are various ways to challenge the legitimacy of a will and these include:
- Lack of testamentary capacity
- Lack of knowledge and approval
- Undue influence or coercion
- Forgery and fraud
- Fraudulent Calumny
- Wills and Administration Proceedings (NI) Order 1994
Lack of Testamentary Capacity
The law states that at the time of creating their will, the person must be of ‘sound mind, memory and understanding’. One of the leading authorities in this area is the case of Banks v Goodfellow . The test in this case states that testator has testamentary capacity where they:
- Understand the nature of the will and its effect;
- Have some understanding of the extent of their property;
- Are aware of the persons for whom they would usually be expected to provide for;
- And are free from any delusion or disorder of the mind that would affect their ability to dispose a will.
The Golden Rule for testamentary capacity was set out in the case of Re Simpson  and states that, “The making of a will by an aged or seriously ill testator ought to be witnessed or approved by a medical practitioner who has satisfied himself of the capacity and understanding of the testator, and records and preserves his examination or findings.’
If the testator lacks testamentary capacity at the time that the will is executed, the will is invalid.
Lack of Knowledge and Approval
For a will to be deemed valid, the testator must have understood and approved the contents of it. It is presumed that a will has been executed correctly and that the person had the necessary capacity; however, the Court may require evidence if there are any disputes relating to the testators knowledge. The Court will seek evidence to prove knowledge in the following circumstances:
- Where the testator was blind or illiterate
- The testator could not speak or write, or was paralysed
- The will was signed by an individual other than the testator at his or her instruction.
If a will is being challenged on the grounds of validity, those who believe that the will is binding have to prove how it is valid
Undue Influence or Coercion
Undue influence occurs where an individual interferes with the creation of the will in order to affect the distribution of the testator’s estate for their own benefit. Undue influence can include acting in a manner that may amount to physical violence or verbal bullying. However, it can be held that undue influence also occurs where the wishes of the testator have been over powered.
Forgery and Fraud
In the circumstances where the entire will or the signature of the Testator is forged, or the contents within the will are fraudulent, then the will is deemed invalid. If any versions of the will have been destroyed by beneficiaries for their own personal gain, the will is also determined as being invalid.
If forgery or fraud occurs at any stage during the will making process, then the will is regarded as not been executed properly and therefore the estate has not been distributed in accordance with the Testator’s wishes.
Fraudulent calumny is whereby one beneficiary of a will makes a false representation about another potential beneficiary to ‘poison’ the mind of the testator. This then results in the testator either leaving more of their estate to the beneficiary who has made the false representations or the victim of the false representations being disinherited.
If fraudulent calumny is established the will is liable to be set aside. Of note however, Fraudulent Calumny is very difficult to prove and has to date not been proven in a Northern Irish case.
Wills and Administration Proceedings (NI) Order 1994
A valid will must comply with Section 5 of the Wills and Administration Proceedings (NI) Order 1994. Therefore, it must be satisfied that:
- It is signed by the testator or by some other person in his presence and by his direction.
- It appears from the will or is shown that the testator intended by his signature to give effect to the will.
- The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time
- Each witness, in the presence of the testator, either—(i) attests the testator’s signature or the testator’s acknowledgment of his signature and signs the will; or(ii) acknowledges his signature.
Contesting a Will after Probate
If you think that you may have grounds for contesting a will, it is important to act as quickly possible. If you wish to dispute a will, it is essential as a first step to enter a caveat where validity is challenged. If a caveat is lodged, this prevents the issue of a Grant of Probate for a period of six months.
Millar McCall Wylie solicitors have acted in many cases where the validity of a will has been disputed. If you find yourself in a position to contest the validity of a will then please contact our Head of Litigation, Caroline Prunty on 028 90200050 or email firstname.lastname@example.org.