Before a will may be admitted to probate, the applicant for a grant of probate (usually the executor) must prove to the court that it was the last will of a free and capable testator (the will-maker). This is usually done without issue, as a validly executed will carries with it a presumption that it is the last will and testament of a free and capable testator. However, a challenge may be made to this presumption through a number of allegations. These allegations may ultimately disprove the validity of the will and bar its admission to probate. This includes an allegation that there is a suspicion that the will maker lacked knowledge and approval of the contents of the will at the time it was made.
The circumstances able to raise such a suspicion of lack of knowledge and approval may relate to the preparation or execution of the will, or the terms of the will, and not to events happening after the testator’s death. Such circumstances must be able to create a well-grounded suspicion or doubt as to whether the will expresses the wishes of the testator. An example of such a situation is where a person who stands to benefit under a will also substantially participates in, or arranges for, its preparation.
Deciding whether a document is indeed a person’s last will is considered by the courts as a serious matter. Any decision must be made on the balance of probabilities. In order to challenge the validity of a will, the court must be persuaded that the there was a lack of knowledge and approval. Or put another way, that it is more probable than not that the testator lacked knowledge and approval of the contents of the will.
The grounds for challenging a will are all interrelated. A challenge to the testamentary capacity of the will maker is commonly accompanied by a challenge to knowledge and approval of the contents of the will. An allegation of a want of knowledge and approval is also commonly used as a vehicle for alleging there are suspicious circumstances in the execution of a will. Further, an allegation of suspicious circumstances is sometimes used as a bridge to allegations of fraud or undue influence. For more information on these other grounds for challenging a will, check out our blog for more information.
If you believe that you have been left out of a will or would like advice from our experienced lawyers about contesting an estate, please contact us for more information.
DISCLAIMER: The information contained in this article is general and is not intended to be advice on any matter. It is for information only and is not legal advice. In the event of a legal problem, you should seek legal advice.
