A contested will

Last week we looked at a will in the making and we noted that the testator must have testamentary capacity when making his will. It is not unusual for a person related to the testator to challenge the will on the grounds that the testator did not have the capacity to make a will especially when a total stranger is the beneficiary.{{more}}

A testator must have knowledge and approval of the contents of the will that he signs. A will is invalid if the information in it was provided by another person and the will is executed (signed in the presence of two witnesses) by the testator. It must be proved to the court that the testator did not know the contents of the will. This would require witnesses who have a good knowledge of the testator to support this position.

Suspicious circumstances

Certain actions will raise red flags when a will is propounded, for example, where the will is prepared by a person who benefits substantially under it, for example, an attorney at law, also where a person is active in procuring witnesses for a will and that person benefits under it. More suspicion will be raised where a person was active in securing a solicitor and has even suggested the terms of the will; where the signature of the testator is shaky or materially different from a previous signature; where there is secrecy surrounding the execution of the will; where there is absence of independent advice, where the testator leaves property or makes gifts to strangers and disinherits next of kin.

Undue Influence

A whole will or part of a will may be made as a result of undue influence and this is used interchangeably with suspicious circumstances by persons contesting a will. Undue influence may be described as using some form of coercion (force) to overbear the will of the testator so that he does not use his free will when he makes a gift to a person or persons in his will. It may take many forms from the very subtle to the extreme where violence is used. Where a person constantly pressures a weak and sick testator in the last days of his life so that he is overwhelmed and he gives in for the sake of peace then this could be regarded as a form of undue influence at the lower end. Persuasion is not coercion and cannot be regarded as undue influence. Sir J.P Wilde in the case of Hall v. Hall declared that a testator may be “led but not driven.”

Fraud

A fraud is committed where a person misleads a testator into making a will in his or her favor.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: exploringthelaw@yahoo.com