WHERE THERE’S A WILL THERE’S A WAY… What challenges can be made to a will?

1.         Challenges to a will: intention and capacity

The most common form of challenge to a will is a Family Provision Claim, but that will be the subject of a later column. 

There are two other ways wills are sometimes challenged.  The first is whether there was the intention that the document be a will.  Most solicitors remember this rather rare first type challenge from a case where there was a competition among law students to write the shortest will.  “All to Mum” with just eight letters, won the competition.  The student died.  Did he intend that to be a will? 

These days the issue often arises with notes people make on things such as furniture, letters, and informal wills.  Often there are scribblings which are person’s drafts.  Rather sadly, the issue probably comes up most commonly now with suicide notes where people say what they want to happen with various assets. 

An informal will can now be effective, but the issue is often whether it was actually intended to be a will at the time the person died. 

A more common challenge is that the person making the will did not have the mental capacity to do so.  The person making the will has to know firstly that the will disposes of their assets on death, secondly at least an outline of what assets they have, and thirdly who is in their family and who might expect to be considered.  Any competent solicitor will make sure that all of these are covered when the will is made, and all other persons are excluded from the consultation.  Sometimes a medical report is needed. 

It can be very difficult to put evidence together about these things.  Usually the evidence comes from the solicitor who made the will, the witnesses to the will, and of course the persons treating doctor.  It is very important when a will is made, that the capacity or ability of the person who is making the will has been covered by the solicitor. 

Don’t leave these things to chance.  Get your will and estate looked after by a competent legal professional with experience in the area.