I donít think the Will is Valid?

 

A person who makes a Will can decide to leave their assets to whoever they wish and unless you are successful with a claim under the Inheritance Act 1975 the Law will not interfere with this.

However, the Will must be valid and the validity of the Will can be challenged on the following grounds:-

(a) Not signed & witnessed correctly.

If the Will has not been signed and witnessed correctly, then the Will will not be valid.

(b) The person making the will was not mentally capable.

It must be shown that he/she had a full understanding of what they were doing and the affects of  making that Will.  Medical evidence will be very important as will any contemporaneous statements  from witnesses regarding the mental state of the person making the Will at the time the Will was  made.

(c) Lack of knowledge or approval.

If  they have mental capacity and the Will has been duly executed, the Court will presume that the  person making the Will knew and approved the contents of his or her Will.  However, if it can be  shown that this may not be the case i.e. a beneficiary prepared the Will, the Court may intervene.

(d) Undue influence.

This is difficult to prove as you must show that the person making the Will was unduly influenced by a  third party to make the Will in the terms set down.  Again, whilst there may be a suspicion that this  occurred, proving it will be more difficult.

(e) Fraud or forgery.

It will be up to the applicant to show that the Will was forged i.e. the person making the Will did not  sign it or was made as a result of a fraudulent act i.e. the person making the Will was misled as to  what he was signing.  The burden of proof will rest with the applicant and may evidentially be quite  difficult to prove.

(f) Revocation

If after making the Will, the person making the Will destroys the Will or marries then the Will will be  revoked and will not be valid.

The difficulty that many people have in trying to overturn a Will on the basis that it is not valid is that the main witness, is no longer available as they have died.  To this end, evidence from medical experts, friends and family of the deceased and any other contemporaneous evidence regarding the Testator’s state of mind at the time the Will was executed will be very important.

With this is mind, it is important to obtain as much information at the outset to ensure that your case is put strongly and supported by evidence, if it is to succeed.

If you have any doubts regarding the validity of a Will, please contact Katie Kearns or Gerard Davis on 024 7655 3181.

 

23rd February 2019

Sarginsons Law