One of the requirements for a will to be valid is that the testator (the person making the will) must have testamentary capacity when giving instructions for, and executing (that is, signing), the will. Where the testator had the required testamentary capacity and the will has been properly executed, there is a presumption that the testator knew and approved the contents of the will.
Knowledge and approval relate specifically to the terms and contents of the will being challenged. If you wish to dispute a will on this basis, you must demonstrate that the testator was unaware of, or unable to understand, the contents of the will. The initial burden of proof rests with the person bringing the challenge.
Relevant circumstances might include:
- Where the testator was deaf or blind and the will does not contain an appropriate execution clause confirming that the contents were explained to them;
- Where arrangements or instructions for the will were not provided by the testator personally;
- Where the terms of the will do not reflect the testator’s instructions or intentions;
- Where the person who prepared the will is also named as a beneficiary;
- Where the will was signed by another person on behalf of the testator, particularly if that person was a beneficiary.
Many will disputes rely on more than one ground of challenge. Where testators are vulnerable, they may lack testamentary capacity or knowledge and approval of the will, and may also have been subject to pressure, duress, or undue influence by another individual.
As specialists, we have experience advising both those seeking to challenge a will and those defending a will challenge. We recognise that these disputes can be emotional and stressful. Please do not hesitate to contact us if you would like to discuss your concerns or require advice in relation to a will dispute.
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