Tests a Court May Apply Before Setting a Will Aside

What To Do First If You Suspect a Will is Invalid

Suspecting that a loved one’s will might be invalid can be stressful and confusing, but there are the legal tests a court applies before setting a will aside. These are strict tests under contentious probate which is when someone challenges the validity of a will.

What Is Contentious Probate?

Essentially contentious probate occurs when someone disputes a will or challenges the distribution of an estate. Reasons may often include:

• Suspecting the testator (the person who made the will) lacked mental capacity.
• Believing the will was made under undue influence or coercion.
• Claiming the will was forged or tampered with.
• Asserting the will does not meet legal formalities.

Disputes like these often lead to court proceedings, and that’s where the four legal tests come into play.

Tests a Court May Apply Before Setting a Will Aside

Our courts take will disputes seriously and they don’t set aside a will lightly. However, the law requires certain tests to be considered before invalidating a will:

1. Test of Testamentary Capacity

The first test examines whether the person making the will had the mental capacity to do so. Under the Mental Capacity Act 2005, the testator must:

• Understand the nature of making a will.
• Recognise the extent of their assets.
• Identify potential beneficiaries.
• Understand the consequences of the distribution decisions.

If the court finds the testator lacked mental capacity at the time the will was signed, the will may be declared invalid.

As courts assess mental capacity to determine if a will is valid, the testator should  understand their assets, beneficiaries, and consequences.”

2. Test of Undue Influence

The second test focuses on whether the testator was coerced or manipulated. The law assumes a person making a will acts freely, without pressure. Courts investigate claims of undue influence by looking at:

• Relationships between the testator and beneficiaries.
• Evidence of manipulation or coercion.
• Timing and circumstances of the will’s signing.

If undue influence is proven, the will can be set aside, and previous valid wills may be reinstated.

3. Test of Proper Execution

The law requires a will to follow strict formalities under the Wills Act 1837. A will must:

• Be in writing.
• Be signed by the testator or someone acting on their behalf.
• Be witnessed by two independent witnesses present at the same time.

Courts will check if these formalities were followed. If not, the will may be invalid, even if the testator had full mental capacity.

So in short – a will must be written, signed, and witnessed by two independent witnesses to be legally valid.

4. Test of Knowledge and Approval

This test ensures that the testator understood and approved the contents of the will. This is sometimes called the ‘knowledge and approval’ test. Courts examine whether the testator:

• Knew what assets the will disposed of.
• Understood who would inherit.
• Approved the will freely, without confusion or deception.

If evidence shows the testator was unaware of what the will contained, or was misled, the will may be set aside.

5. Fraud or Forgery

This test examines whether a will was forged or the testator was misled into signing it under false pretences, it can be set aside. This includes situations where the signature was faked or the contents were altered without the testator’s knowledge.

What to Do First If You Suspect a Will Should Be Declared Invalid

Suspecting a will is invalid can be overwhelming and emotional. Acting quickly is crucial because probate disputes are time-sensitive. Here’s what you should do first:

1. Seek Legal Advice Immediately

Contact a specialist contentious probate solicitor who will:

• Assess your claim against the legal tests.
• Advise on the strength of your case.
• Help you gather evidence before deadlines expire.

Waiting too long can reduce your chance of success.

2. Gather Evidence

Evidence is key in contentious probate. You will need to collect:

• Medical records or capacity assessments.
• Correspondence or statements indicating undue influence.
• Previous versions of the will, if available.
• Witness statements or affidavits.

The more detailed your evidence, the stronger your case will be in court.

3. Avoid Confrontation

Even if you suspect foul play, avoid directly confronting beneficiaries or family members. Emotional conflicts can escalate disputes and damage your case.

4. Check Deadlines

You usually have six months from the grant of probate to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 or to challenge a will based on invalidity.

Common Mistakes to Avoid

When disputing a will, people often make mistakes that harm their case. Avoid:

• Waiting too long to act.
• Making unverified claims of fraud or coercion.
• Ignoring the formal requirements for filing a dispute.
• Attempting DIY probate challenges without legal guidance.

Following the proper legal process improves your chances of success and protects your interests.

Key Takeaways – Your Quick Checklist

1. Courts apply specific legal tests before setting aside a will:

• Testamentary capacity
• Undue influence
• Proper execution
• Knowledge and approval
• Fraud or forgery

2. Contentious probate cases can arise for various reasons, including mental incapacity, coercion, or formal defects.

3. Immediate steps if you suspect a will is invalid:

• Consult a specialist solicitor
• Gather all evidence
• Avoid direct confrontation
• Check deadlines

4. Courts examine facts and evidence, not assumptions. Your careful preparation can significantly impact the outcome.

Why Specialist Legal Advice Matters

Wills and probate disputes are legally complex. The legal tests serve as gatekeepers for courts, ensuring that only valid claims proceed. Attempting to navigate this process alone can be risky.

We work with specialist solicitors in contentious probate who can:

• Review the will against all four tests.
• Advise on the likelihood of success.
• Represent you in court proceedings.
• Help negotiate settlements where appropriate.

Get Help Today

Courts will only set aside a will if the testator lacked capacity, was under undue influence, didn’t follow proper execution, or didn’t know and approve the contents. Seek a specialist solicitor immediately if you suspect invalidity.

Acting quickly and consulting a specialist solicitor are your first steps if you suspect a will should be declared invalid. By following the proper legal process, gathering evidence, and avoiding common mistakes, you can protect your interests and increase your chances of success in contentious probate proceedings.

We offer a range of fee structures, including ‘No Win, No Fee’ for certain cases along with other flexible funding – speak to our team to find out more.

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