Is Your Will Valid? 5 Ways Your Will Can Be Contested
A legally valid Will will ensure that your loved ones are taken care of and that you pass on your estate exactly how you intend.
However, if your wishes are not expressed clearly beforehand or the Will is not legally sound, this leaves it open to being contested in court.
Over the past 15 years, the number of contested Wills has been increasing year on year, possibly due to more family situations becoming more complex.
Here are the 5 most common ways that Wills are contested.
Not following legal procedure
If the legal steps required for writing a Will are not followed, it could be deemed invalid and therefore, open to being challenged. One of the critical steps to consider carefully is getting the right witnesses.
The legalities around witnesses vary from country to country. In most countries, your Will must be witnessed by two people, but in some jurisdictions, you may need three. Witnesses cannot be beneficiaries of the Will, and to be safe, no-one mentioned in the Will, or even related to someone mentioned in the Will, should be a witness.
Again, in most countries, a witness must be over 18, but in some, they can be as young as 14. The witnesses must watch you sign your Will, and you must then watch them sign. How often we have seen Wills that were invalid because the witnesses signed on a different date to the testator!
If any one of these conditions are not met, the Will can be declared invalid.
‘Reasonable Provision’ for financial dependents
If someone is financially dependent on you, the law dictates that you must make what is known as ‘reasonable provision’ for them in your Will. This includes any child, spouse or any other person that may be financially dependant on you.
If you have left someone out of your Will, who can prove that he was financially dependent on you during the last years of your life, he has grounds to contest the Will and is most likely to win.
‘Lack of Capacity’
For a Will to be valid, you must be of sound mind so to fully understand the implications of the contents of the Will. This includes being aware of who your beneficiaries are, the value of your estate, and how it is divided between beneficiaries, as well as who is appointed to manage the estate.
The Will can be challenged if it is believed that you did not fully understand the contents or what you were agreeing to.
The wishes in your Will must be made of your own accord. If a Will is made involuntarily or you are put under pressure to change the Will in someone else’s favour, this ‘undue influence’ can make the Will invalid. If someone feels this has taken place, they can legally challenge the Will. This is a situation that often arises if someone makes or changes a Will late in life or just before coming to a sudden end.
Wills can be challenged if it is believed the content of the Will or a signature of the testator or witnesses has been forged.
‘lack of capacity’ was the most successful grounds when looking at Wills contested in 2018.
‘Undue influence’ was the most commonly sought reason to contest a Will, but was actually the most unsuccessful due to it being quite difficult to prove. Source: The Balance
As family situations become more complex and higher house prices lead to higher estate values, the number of contested Wills is inevitably increasing.
It is crucial to ensure that your Will is legally watertight and that your wishes are expressed clearly and voluntarily to avoid any conflicts later down the line.
Phoenix Wills provides expert Will writing no matter the complexities of the family or your wishes. Get in touch today for a free consultation.