On what grounds can a will be contested?
What is meant by lack of capacity?
What if the person preparing the will has doubts about the will maker’s capacity?
The will writer will consider if their client has capacity and may seek confirmation from the client’s doctor if they have any uncertainty.
What is lack of knowledge and approval?
The will maker must have knowledge that they are making a will and approve of its contents.
A will may be contested for lack of knowledge and approval even where a person who has capacity to make a will and has properly executed the will.
How is a will properly executed?
Under the Wills Act 1837, a will is not valid unless:
These requirements are strict and must be adhered to for a will to be valid.
What if I am concerned that a family member or friend may have influenced the deceased when making their will?
Proving undue influence is very difficult as the main witness (the deceased), will not be able to give evidence in Court. The burden of providing undue influence is with the person making the allegation, once it has been shown that the will is valid in all other aspects.
For undue influence to be proved, the following must be established:
I am concerned that the deceased’s will may be a forgery, what can I do?
If you are concerned that a will may not be valid then you should seek advice on entering a caveat at the Probate Registry as early as possible to prevent the issue of the Grant of Probate. This will prevent the estate from being administered and distributed until concerns regarding validity of the will have been investigated and resolved. In cases where a solicitor has prepared the will, a Larke v Nugus letter to the will writer is useful in establishing the circumstances surrounding the making of the will.