The idea of contesting a will is becoming more and more common as people consider themselves aggrieved by the outcome of someone else’s testamentary wishes.
There are certain legal grounds on which a Will can be contested.
These include; duress of undue influence. These factors can make a Will invalid but are difficult to prove and require clear evidence of behaviour that left the Will maker with no alternative but to make a Will a certain way.
A Will can also be set aside if the person who made it lacked testamentary capacity at the time the Will was made. If this is the case the court can refuse to admit the Will to probate. If this occurs the person’s previous Will, made before the last Will, is admitted to probate. This is why it is often important not to destroy former Wills.
There are many cases dealing with testamentary capacity and ultimately if a Will is challenged on that basis the court will make a determination based on the evidence presented to it. If a person’s capacity is questionable perhaps due to frailty or illness, a medical report should be obtained prior to making the Will so that this issue will not be raised at the time the Will comes into action.
Finally, Wills can be contested on the basis of provision. The law permits certain categories of people to contest the provision that has or has not been make for them ie a child is left out of the Will. That child can bring an application to the court and the court has the power to make a award for that child if certain criteria are met.
If you intend to omit somebody from your Will please get advice about what to do to safeguard your intentions. If you have been omitted from a Will of a relative you should get advice about your rights and if a claim is to be lodged in the court it must be done so within 18 months of the date of death of the will maker.