Claims on the validity of wills and whether a will makes ‘reasonable provision’ for a claimant have become more common in recent years. The professional taking instructions for a will needs to be aware of the types of claim that can be made against a will so they can take the appropriate steps to reduce the chances of such a claim succeeding; for example, by taking care to confirm the testator’s capacity. This article will examine the types of claim that can be made against a will.
Inheritance (Provision for Family and Dependants) Act 1975
The Inheritance (Provision for Family and Dependants) Act 1975 gives the court powers to order financial provision from a deceased’s estate to benefit certain applicants. S1 of the act allows certain people to bring an application to the court due to lack of reasonable provision from the deceased’s estate. The court would need to decide whether the deceased’s estate did not provide the applicant with reasonable provision and if so decide whether to award the applicant with provision from the estate and if so, how much.
Only people who fall into the classes named in S1 of the act can apply to the court based on a lack of reasonable provision. Their ability to bring an application does not mean that it will be successful and there are a number of factors that the courts will consider when dealing with an application.
Lack of Testamentary Capacity
In order for a will to be valid, the testator must have testamentary capacity, or the capacity to create a will. The test for capacity to execute a valid will is based on the test set out in Banks v Goodfellow (1870) LR 5 QB 549. A testator must:
- Understand the nature of making a will and its effects: this being that the testator must know that they are making a Will to dispose of their assets AFTER they have died. In other words, the testator understands that the Will is to come into effect on their death and not before.
- Understand the extent of the property of which they are disposing: the testator does not need to know the exact value of everything they own but must know the extent of their wealth. For example, be able to give approximate figures of the assets which they own.
- Be able to comprehend and appreciate the claims to which they ought to give effect: they must know who might have first claim on their property. An example could be that the testator is married and therefore the spouse would have claim upon the estate.
- Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.
Undue influence is where a third party applies pressure to the testator to the extent that it overpowers the testator’s own free will so that their will cannot be said to be their true wishes.
Undue influence may come in the form of forcing the testator into making a will in the third party’s favour by physical or emotional threats or by poisoning the testator’s mind against another person. Simple persuasion is not seen as undue influence and for there to be undue influence there must be an element of coercion. It is often said that a testator can be led to writing a will in a certain way but cannot be driven.
Other ways parties might attempt to have a will set aside could include:
- The testator does not have knowledge and approval of the contents of the will.
- That the will has not been attested correctly.
- That the will is a forgery.
- The will was made as a result of fraud.
- The will has since been revoked.
- A previous will was a mutual will.