The High Court has recently ruled that a Will of a deceased solicitor which excluded his only daughter was forged.

The Will left the deceased’s entire estate to an IT consultant, who was not known to the deceased’s daughter and so the case was brought to the High Court by the daughter who challenged the authenticity of the Will.

The Will included assets in Pakistan which arose suspicion as there was no evidence to suggest that the deceased had assets there. The judge also held that the circumstances surrounding the drafting and storage of the Will created suspicion. There was no file containing attendance notes to document the taking of instructions or the execution of the Will. A handwriting expert also concluded that there was strong evidence to suggest that the deceased had not signed his Will himself and that it had been signed by someone who seemed familiar with the deceased’s signature. The Judge concluded that the Will was a forgery.

This case highlights the importance of making sure that you’ve sought advice from a qualified legal professional who is registered and supervised by a legitimate supervisory body i.e. the Solicitors Regulation Authority or the Chartered (legal execs) when preparing the Will. This ensures that there are no third parties involved in the process and that ultimately the Will is valid once signed.

Wills can be challenged by disappointed beneficiaries on a number of grounds:

Validity

A Will must be in writing and signed by the testator (the person making the Will) in the presence of two independent witnesses, who must also sign the Will in the testator’s presence. The testator must also intend to create a Will. If any of these elements are missing, then the Will may be declared invalid.

Lack of testamentary capacity

Anyone challenging a Will on the grounds of a lack of testamentary capacity must raise a real suspicion that the testator lacked capacity at the time of making the Will.

If they are able to do this then the burden falls to those seeking to prove (the Executors) the Will to show that the testator did have capacity.

The test for capacity was set out in the case law of Banks v Goodfellow and requires that the testator must be able to; understand the nature of a Will and its effect; understand the extent of his/her property; appreciate any claims to which he/she ought to give effect; and have no disorder of the mind.

Undue influence

A Will can also be challenged on the grounds of undue influence, but sufficient evidence must be produced to satisfy the Court that actual undue influence occurred and that the testator acting was coerced into making the Will.

Lack of knowledge and approval

The testator must have understood and approved the contents of the Will. This is different from having sufficient testamentary capacity and may be a relevant ground if the person making the Will was deaf, blind, illiterate or unable to speak. If this challenge is raised, then it is for those proving the Will to establish that the testator did indeed have knowledge and approval of the Will.

Claims against the estate

It is also possible for disappointed beneficiaries to make a claim against an estate on the grounds that insufficient provision was made for them.

The Inheritance (Provision for Family and Dependants) Act 1975 allows for certain categories of people to bring a claim against an estate on the grounds that insufficient financial provision has been made for them in the Will.  A claim on this ground must be made within six months from the date of the Grant of Representation being issued and the claimant must meet the specified criteria of who can bring a claim in order to do so.

Next Steps...

If you require any assistance with the drafting of your Will then please do not hesitate to get in touch on 01530 564498 or email me at m.lovell@timms-law.com

For more information about Wills & Probate, please visit our webpage here.