There is only one thing that is certain in every human being’s life, that is, death. Many individuals in anticipation of the inevitable try to ensure that their assets are distributed in accordance to their wishes by putting pen to paper and creating a will. This is often done with the hope that their wishes will be clearly identified and adhered to upon their death. However, the main objective of the will is often defeated and in many cases the opposite occurs. Instead, the contents of the will are looked at with great scrutiny and the will becomes the centre of much controversy, debate and suspicion.
The validity of the will becomes a serious issue, especially in situations where the testamentary wishes provided for in the will do not appear to be consistent with the testator’s- the person making the will- actions while he or she was alive.
The validity of a Will is normally challenged for the following reasons: lack of proper formalities, lack of testamentary capacity, and undue influence. These are not the only grounds on which the validity can be challenged but these grounds are considered to be the most popular.
Lack of proper formalities
For a will to be valid and consequently admitted to probate it must comply with the formal requirements laid down in Section 6 of the Wills Act. That section provides that a will must be in writing; it must be signed at the foot or the end by the testator or by someone else under the testator’s direction and in his/her presence; the signature of the testator must also be and acknowledged by the testator in the presence of two witnesses present at the same time. If any of these requirements are missing the Will is invalid and cannot be admitted to probate.
These formalities must be also be strictly complied with where the testator makes any amendments to the Will after the Will has been already executed, that is, signed by the testator and witnesses. Where alterations are made after execution and those alterations are not duly executed in the manner stated above the Will itself may be invalid or be admitted to probate with the alterations omitted.
Ensuring that the formalities are strictly adhered when a Will is altered after it has been executed is a safeguard mechanism adopted by law to minimize the risk of words being inserted or removed from a Will without the consent of the testator. The removal or addition of words in a Will could have the effect of changing the entire Will and disposing assets against the testator’s wishes or disentitling a beneficiary under the Will.
This is one of the most popular grounds in which the validity of a will is challenged. It can also be one of the easier grounds to prove, if on the face of the will at least one of the required formalities is missing.