There are certain formalities that must be followed in order to create a valid Will:
- It must be in writing and signed by the testator (creator) or by some other person in the presence of the testator or at his/her direction;
- It must appear that the testator intended for his signature to give effect to the Will;
- The signature was made or acknowledged by the testator in the presence of 2 or more witnesses at the same time;
- The witnesses must then attest and sign the Will or acknowledge their own signature in the presence of the testator but not necessarily the other witness.
If the Will fails to comply with one or more of these requirements, you can contest the will and it will be deemed invalid. Will disputes of this nature are quite common. However, there is a presumption that a Will has been properly executed and therefore real evidence is required to show that the formalities haven’t been followed.
We most commonly challenge a Will on the basis that the testator has failed to follow rule 3 above. The witnesses must both be present together when the testator signs or acknowledges their own signature. If you wish to challenge a Will on this basis, evidence from the witnesses of the Will should be vital in proving your case.
It is important to note that if the challenging of a Will is successful then the Will is deemed invalid and the testators previous Will (if any) will stand. Therefore, it is important to check whether any potential Claimant would be better off if the most recent Will was declared invalid. If no previous Will exists or can be traced, the estate will be divided under the laws of intestacy.
If you believe that you have grounds to contest a Will then please contact us to discuss your case.