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A Will can be challenged on the basis
that
(a) that the will was not duly
executed;
(b) that at the time of the execution
of the will the testator was not of sound mind, memory and
understanding; and
(c) that the execution of the will was
obtained by undue influence or fraud;
1. Failure of due execution
We always ask our clients to confirm that they
have executed their Wills correctly. They have:
"read through them to ensure that details were
correct and understood the gifts we were making. There were two
witnesses present and neither witness was a person referred to, or in
any way interested under the provisions of the Will, or the husband or
wife of such a person. The Testator and the two witnesses remained
together throughout until all three had signed #in the same pen
If these rules are not followed then the
question of due execution can arise.
2. Incapacity
The mental capacity required to make a Ill is
high in compared to many other transactions.
In Banks v Goodfellow Judge Cockburn said:
'It is essential that a testator shall
understand the nature of his act and its effects; the extent of the
property of which he is disposing; shall be able to comprehend and
appreciate the claims to which he ought to give effect, and, with a
view to the latter object, that no disorder of mind shall poison his
affections, pervert his sense of right, or prevent the exercise of
his natural faculties, that no insane delusion shall influence his
will in disposing of his property and bring about a disposal of it
which, if his mind had been sound, would not have been made'.
But, a person need not be in perfect mind and a
will will not be disallowed merely becuase its maker 'was moved by
capricious, frivolous, mean or even bad motives. A testator may
disinherit his children to gratify his spite or benefit charity to
gratify his pride ...'
3. Want of knowledge and approval
Someone seeking probate must be able to show
that at the time of execution the testator knew and approved of its
contents. Problems of 'want of knowledge and approval can arise in three
different ways, namely: (a) where there is a mistake in the preparation
of the will; (b) or where the testator is blind, deafness, or
illiterate; and (c) where the circumstances make the Court suspicious.
4. Undue influence
For a claim of undue influence to succeed it
must be established that the mind of the testator has been so dominated
that the Will is the result not of his/her own wishes but of that of the
influencing party.
5.Forgery and fraud
6. Revocation
A testator's will may have been revoked. A will may
be revoked by marriage or by divorce; by a new will; or by its destruction.
- Proprietary estoppel and Mutual Wills
(a) Proprietary estoppel
It must be shown:
(a) The claimant believed he was to
receive under a deceased's Will .
(b) the deceased encouraged that belief
was by and whilst there is always a right to change his/her mind
deceased to believe the assertion was that the deceaswed woudl
not do so
(c) The claimant acted to his/her
detriment relying on that belief and that it was unreasonable of
the deceased to fail to make such provision.
(b) Mutual wills
Where there is an agreement between two people
that their wills are to be mutually enforceable (including an
undertaking not to change after the death of the first ), then a
floating trust arises, which is irrevocable after the death of the first
and becomes effective on the death of the second.
The floating trust is not affected by
revocation of the second 's mutual will after the death of the first
testator. Accordingly, the estate of the second is subject to the
floating trust and must be administered as such.
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