Will made under pressure how to challenge it in court

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GROUNDS FOR CHALLENGING THE VALIDITY OF A WILL Under English law a person who makes a Will (the testator) can decide to leave their assets to whomever they wish when they die, however unpopular that decision may be with disappointed relatives (although the Court can override the terms of a Will in certain limited situations under the Inheritance (Provision for Family and Dependants) Act 1975. However, the validity of that Will can be challenged on any of the following grounds:- • Lack of due execution A Will must be in writing and signed by the testator (or signed by someone else in the testator’s presence and as instructed by the testator) in the presence of two witnesses, who must also sign the Will in the presence of the testator. • Lack of testamentary intention You would have to show that the testator had not intended to make a Will. It is usually clear on the face of the Will that it is designed to take effect as a Will so this ground is rarely used. • Lack of testamentary capacity The testator had to be capable at the time that the Will was executed of deciding to make a Will and deciding to leave his assets in the way set out in the Will. If he was unable to make that decision for himself because of an impairment of or disturbance in the functioning in his mind or brain (whether because of mental illness or because he was under the influence of alcohol, drugs or medication) he would not have had sufficient capacity to make a valid Will. • Lack of knowledge and approval If the testator had testamentary capacity and the Will has been duly executed the Court will presume that the testator knew and approved the contents of the Will – unless the circumstances surrounding the preparation of the Will cause the Court to be suspicious (e.g. because the main beneficiary under the Will prepared it). • Undue influence The burden of proof would be on you to show that the testator had been unduly influenced by a third party to make his Will in the terms that he had. • Fraud or Forgery The burden of proof would be on you to establish that a Will was forged (i.e. someone other than the testator signed the Will) or was made as a result of a fraudulent act (i.e. the testator was misled into making his Will on the terms he did). • Revocation If, after making his Will, the testator destroys the original, makes a later Will or marries, that Will will have been revoked and will not be valid. Importance of Evidence In the case of any challenge to the validity of a Will the key witness – the testator – will obviously not be available to give evidence. Accordingly, obtaining evidence from other sources (e.g. others’ recollections; documents etc) is crucial. If a solicitor drafted the Will, asking to see their file is a good starting point. Time Limits for challenging a Will There is no statutory time limit for claims to challenge a Will. However, in the event of inexcusable delay, a substantial lapse of time (with knowledge of the potential claim), or acceptance of a benefit given under a Will, the Court could conclude that the claim should not be allowed to proceed. What happens if the challenge is successful? If the Will’s validity is successfully challenged the testator’s assets will be distributed in accordance with the testator’s previous valid Will or (if there is no previous valid Will) the intestacy rules. Lack of Capacity A valid will requires that the decedent possessed "testamentary capacity," sometimes referred to as having a "sound mind," at the time the will was made. The decedent must also have met the state's minimum age requirement. Challenging a will on the basis of capacity typically requires showing that the decedent did not understand the nature and extent of the property or the identity of natural heirs. Typically, such a challenge requires medical evidence showing mental impairment. Undue Influence A challenge of undue influence means the decedent did not make the will of free choice, but solely due to the improper influence of another person. A common situation that leads to such a challenge is where a lone sibling cares for an infirm parent, and the caregiver sibling receives a greater portion of the parent's estate than other siblings. This is particularly true if the parent has changed his will while under the care of the sibling and if this fact was kept secret from the other siblings. Fraud, Mistake, or Other Factors A will can be challenged for fraud, such as when pages have been inserted after the decedent signed the will or the decedent's signature is forged. If the will was not executed properly, with only one witness signature when two are required, for example, the will can be challenged as invalid. Sometimes a will that has been previously revoked is mistakenly (or purposefully) submitted for probate. This version will be rejected when the superseding will is provided. Challenges Are Handled in Probate Court You challenge a will by filing an appropriate petition in the state probate court that has control over the decedent's estate. The type of petition, the basis for the challenge, and the likely results depend on the state law where the court is located. Each state's law has its own rules, which can differ greatly. These include the deadline for filing your challenge and whom you must notify regarding your challenge. Violating these rules can delay and increase the expense of your challenge, or result in it being lost. Disadvantage of Challenging a Will Challenging a will because you believe your inheritance should be greater usually involves a risk a violating the "no-contest clause" that is typically found in a will. If your challenge fails, the will is valid and the no-contest clause will prevent you from receiving the inheritance left to you in the will. State law varies regarding the conditions under which a no-contest clause is valid, so it is important to know the law in your state before challenging a will.

Advocate Siddhant Sharma LawRato