Challenging the validity of a will

Whether a will is valid or not

If you feel there is something not quite right with the will set out by a loved one, it can make a hard time even worse. The requirements for a valid will are set down in the law, it is up to the person relying on the will to prove that it is indeed valid.

Legal Services - Is the Will valid?

When can you challenge the validity of a will?

For a valid will to exist, the person for whom it applies must intend to make it, and the will must be executed properly.

A will may be deemed as not properly executed or invalid for any of the following reasons:

  • Lack of capacity – They lacked mental capacity at the time they made it, and were unable to make the decision for themselves
  • The person making the will didn't know or approve the contents of the will – this is sometimes seen in 'mirror wills', and where someone benefitting from the will plays a big part in making it
  • Undue influence – The person was pressured into making the will in some way
  • The will was forged, or the person was misled into making it
  • A will that has been revoked will not be valid - a will can be revoked by making a new will that says it revokes the old one, by destroying the old one or by getting married
  • A will is not valid if any of the signatures are missing

If a will is declared invalid by the court, it will be thrown out completely. After this one of two things will happen:

  • An earlier, valid will can be used
  • The laws of intestacy will apply if there is no valid will – the rules of intestacy can also be challenged in certain circumstances

Because of the several directions an invalid will can lead you, it is important to seek legal advice.

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Robert Godfrey | Partner, Dispute Resolution | Simpson Millar LLP

Robert Godfrey
Partner, Dispute Resolution

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