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WAS A WILL MADE IN UNFAIR CIRCUMSTANCES? IT CAN BE CHALLENGED!
The most unfair Will of all is the one where the deceased’s signature has been forged. Though it is not common, it does happen. If you can prove that a Will was a forgery the Court will strike it out and it will be null and void.
Wills made under "undue influence"
A more common case is the one where there is a real question as to whether the will-maker understood what they were signing. There are also those cases where the will-maker was put under pressure or subjected to “undue influence”.
Wills made under misunderstanding or delusion
Wills can also be contested if the will-maker made their Will at a time when they were under a misunderstanding or a “delusion”. A will-maker will be under a delusion if they were led to believe certain facts which were simply untrue, and their mistaken belief in those facts led them to make their Will in a particular way.
If a person made a Will at a time when they were:
- under pressure; or
- being forced; or
- in fear; or
- they were in circumstances where their judgment was overpowered,
then the Will may be invalid due to “undue influence”.
A person making a Will must have what is called “testamentary capacity”. That means they must have a sound mind and be able to understand:
- what a Will is meant to do;
- the nature and extent of their assets and liabilities; and
- their relationship to the persons that they intend to benefit under their Will.
In our experience the validity of a Will is suspicious if:-
- At the time of making the Will the will-maker was known to be forgetful or suspected of having Alzheimer’s disease or dementia;
- A beneficiary receives an unexpectedly large share of the estate and was particularly pro-active in getting the will-maker to make their Will;
- If the Will was made at home or without the close involvement of a solicitor that is independent from any of the beneficiaries;
- If the Will was signed at a nursing home or hospital shortly before the will-maker passed away; and/or
- If a carer of the deceased person takes an unexpectedly large part of the estate.
The presence of any of these factors, if backed up with proper evidence, can persuade a Court to declare an unfair Will invalid.
If you have suspicions of an unfair Will being made in these types of circumstances then you must get expert legal advice quickly in order that proper evidence can be obtained and any challenge launched within applicable time limits.