What are the grounds for contesting a will?
There are generally two methods to contesting a will that include:
- Casting doubt over whether the will is valid, or
- The will failing to make ‘reasonable financial provisions’ for a family member or a person who was financially dependent on the testator (person who made the will) before they died
The most common way of contesting a will is to make a challenge based upon its validity, which is to say that there was a reason why the will wasn’t correct. There are five ways of doing this:
1. Lack of knowledge or approval
While everyone can make a will, not everyone is in a position to write one themselves. If someone else writes a person’s will, the testator must understand and approve the contents of it. This is especially relevant if the person writing the will is also a beneficiary of said will as they may have included alterations that were not originally intended, nor wanted. There are a few other instances where a court may ask for evidence to prove knowledge and approval. These are:
- Whether the person was blind or illiterate
- The person was deaf and/or dumb (unable to speak)
- The person was unable to speak or write temporarily, for example they were paralysed or in a coma
- Where the will was signed by someone other than the person making the will but at his or her instruction
The burden of proof is in the balance of probabilities. This means you only have to prove it’s likely the person who made the will was affected by a lack of knowledge and approval. However, the extent of the burden depends on the seriousness of the suspicion that has been alleged.
For example, if someone who is blind and deaf signs a will that has been written by the sole beneficiary outlined in the will excluding all their children, this would be very suspicious. Anyone contesting the will would need only to prove to a small degree that the will-maker did not know to whom they were leaving everything to.
In contrast, if someone who is deaf but can see writes their own will and excludes their children, this would be less suspicious. This means anyone contesting the will would need greater proof they didn’t know what they were doing.
Once the suspicion has been proved, the burden of proof shifts to the beneficiaries included in the will, who want it to remain valid, to prove the will-maker knew what they were doing.