A Will differs from contracts and other executed documents in one important aspect. Unlike other documents, a Will only takes effect from the death of the person who has made it (called the testator). The testator’s testimony is not available to determine whether the Will is valid and whether it constitutes the testator’s true intentions. Thus, the validation and interpretation of a Will is rather unique for the significance of surrounding circumstances, and the identity and status of parties.
This being the case, it becomes advisable not only to prepare a Will that is clear and legally valid, but also to ensure that if a challenge to the Will is anticipated, suitable safeguards to fortify it have been put in place. In this post, we discuss the legal grounds on which a Will may be challenged, and some of the commonly adopted precautions that testators may put in place to help validate their Wills and to assist in giving effect to their desired intentions.
Grounds for Challenge
After the testator passes away, the Will may be challenged before a Court by any person who claims to have an interest in the testator’s estate. If the Court finds, based on the evidence placed before it, that the challenge is sustainable, it will declare the Will void and set it aside.
One of the grounds on which a Will may be challenged is that the testator did not possess ‘sound disposing mind’. That is to say, he/she did not have the cognitive powers to understand the nature and effect of the dispositions made in the Will. In legal parlance, this is referred to as lack of ‘testamentary capacity’. Such challenges are particularly likely if the testator was old or infirm.
A Will may also be challenged on the ground that there was undue influence or coercion, which prevented the testator from exercising ‘free will’ in preparing the Will. Courts will also examine if the Will was a forgery or prepared by fraud.
To ascertain whether the Will is valid, Courts will examine all the surrounding circumstances which led to the preparation of the Will. If any circumstances appear to be ‘suspicious’, Courts are likely to be hesitant in declaring it valid. While it is not possible to enumerate an exhaustive list of suspicious circumstances – these include a shaky or doubtful signature, significant overwriting and strikethroughs, indications of feeble or debilitated mind of the testator, inexplicable absence of provisions for natural heirs, unnatural or improbable dispositions, and so on.
Need for Safeguards
The onus is generally on the person relying on the Will (heirs or executors) to prove the valid execution of the Will, and if there are any suspicious circumstances surrounding the Will (whether in the opinion of the Court or alleged in case of challenge), to explain them with satisfactory evidence. As noted above, the testator – having long departed – can no longer aid the heirs or executors except through material left behind.
Thus, if the testator anticipates that a Will may be questioned or challenged, in addition to writing a clear and unequivocal Will, it would be prudent to leave behind for the benefit of heirs/executors adequate supporting evidence. Some of these are discussed below.
Safeguards
It is recommended that the same safeguards that are put in place for preparing a Will are replicated when the Will is amended through a document called a codicil.
Conclusion
Implementing adequate safeguards for preparing a Will would certainly reduce the risk of a challenge being upheld and help give effect to the testator’s wishes. At the same time, please note that these are not formalities mandated by law to constitute a valid Will or codicil, but are instead precautions which Courts have regarded as helpful in supporting the validity of a Will.
Undoubtedly, Courts will also be appreciative if such safeguards are in place as these might help – in the words of a famous English judge – to considerably diminish the ‘ghosts of dissatisfied testators’ who ‘wait on the other bank of the Styx to receive the judicial personages who have misconstrued their Wills’!
* The author was assisted by Shaishavi Kadakia, Senior Associate, and Tanvi Kini, Associate