How to Challenge the Validity of a Will

A Will can be challenged on a number of grounds, namely lack of testamentary capacity, lack of knowledge and approval, fraud or undue influence, subsequent revocation or lack of formalities of execution.

Section 9 of the Requirements of section 9 of the Wills Act 1837 provides that no Will shall be valid unless:

• It is in writing and signed by the testator (the person writing the Will), or by some other person in his presence and by his direction
• It appears that the testator intended by his signature to give effect to his 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 either
  • attests and signs the will; or
  • acknowledges his signature, in the presence of the testator (but not necessarily in the presence of the other witness), but no form of attestation shall be necessary.

There is a wealth of case law concerning section 9 and a variety of grounds upon which the validity of a Will may be challenged, with each case turning on its particular facts.

For instance, in challenging the validity of the testator’s signature, it should be noted that anything that the testator intended to be a signature will suffice.  An inky thumb print, initials, a mark made by a rubber stamp with the testator’s initials on it, the words ‘your loving mother’ and part of the testator’s signature, providing that the testator had completed what he/she intended to write, have all been found to be acceptable.

Court cases concerning the formalities of execution of a Will most commonly concern section 9 (c) and whether the witnesses were jointly present when the testator signed or acknowledged.  It should be noted here that a signature is made in the ‘presence’ of witnesses if the witnesses are in such a position that they could see the testator in the act of signing.  It is not necessary that the witnesses should know that the document is a Will and they do not have to see the entire document.  However, the witness must of course be able to see the testator’s signature.

For further information or f you wish to obtain advice about a claim or defend a clam being brought against an Estate please contact our expert Kevin Richardson on 02392 660261 or krichardson@biscoes-law.co.uk