Contested probate and making a challenge to a Will can be a very complex area of law, as the ways to legally challenge a Will are limited. Our contested probate solicitors are experts in this field and are here to make this difficult process progress much smoother. We find that the majority of Will disputes often fall into one of the following key areas:
Lack of formalities
To be valid, a Will must be in writing and signed by the person making it (the Testator), with their signature being made in the presence of two or more witnesses, who are present at the same time and who sign the Will in the presence of the Testator. The Testator must be older than 18 (unless a serving member of the Armed Forces, where different rules can apply).
If allegations are made that tend to disprove compliance with the formalities, the burden of proof is on the person making the complaint.
At the time of giving instructions to the making of the Will and at the time that it is executed, the Testator must understand what a Will is representing and what they are doing by creating a Will. They must also understand the extent of the property which they wish to give away. The Testator must comprehend and appreciate the claims to which they ought to give effect and that they were not subject to any disorder of the mind or delusion which may influence their ability to make the Will and dispose of their property.
This is an allegation that the Testator executed an otherwise valid Will as a result of some undue influence or coercion placed upon them. The person who alleges undue influence has the burden of proof and strong facts and evidence would need to be produced to the Court.
Knowledge and approval
The burden of proving the validity of a Will lies upon the party proving the Will. The Executor must satisfy the court that they are proving the last Will of a free and capable Testator. Suspicions may arise for example where a party writes or prepares a Will for a Testator under which the preparer will benefit. The burden of proof is on the balance of probabilities and the extent of the burden will depend upon the seriousness of the suspicion that may have been aroused.
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