Lots of people call our office seeking to contest a will made by someone that they knew. Some people think that it is an easy thing to do. If only it was! To be valid a will has to be in writing, duly executed, and made animo testandi (with the intention that it is a will).
What does all that mean?
The writing bit is easy but when is a will “duly executed?” The Will has to be signed by the person making the will and that signature has to be witnessed by two other persons who also have to witness each other’s signature. There is a lot of case law involving signatures in the wrong place and witnesses’ signatures being dated on different dates making the will completely invalid. A person signing a piece of paper and it being witnessed by two others is not a will unless the documents say so hence why most wills begin “This is my last will and testament……”.
Who Can Be a Witness?
People who benefit from the will cannot act as witnesses nor can spouses of people who so benefit. It is much safer to have a complete stranger witness the will.
Can a duly Executed Will be challenged?
If a party is coerced into making a will or makes the will based on the information given to him that is incorrect can mean that a will can be challenged. If the person making the will lacks capacity through illness or infirmity a will can be challenged through the Courts.
How Do You Go About Challenging the Will?
What Do You Do if You Want to Challenge A Will? The will allows you to obtain a Grant of Probate so that the estate can be administered. The first thing to do is to enter a caveat at the Probate Registry. That caveat will prevent the will from being proven to the Court preventing a Grant of Probate from being obtained. Without the Grant of Probate, an estate remains as it was at the time of death. You then need to speak to a solicitor as soon as possible. Make sure that you look closely at the caveat. It has a limited life span and will lapse if it is not renewed.