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 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 minimise 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.

Lack of testamentary capacity

To make a valid will the testator must have testamentary capacity, that is, the mental capacity to make the will. The testator must be of sound mind, memory and understanding. He must be capable of understanding that he/she is making a will and disposing of his assets upon his death at the time the will is made. The lack of testamentary capacity is one of the basis on which the admissibility of many wills have been challenged in court and consequently has been the subject matter of many contentious probate actions. A will can be challenged on the ground of lack of testamentary capacity where there is evidence to prove that the testator, at the time the will was made and executed, was suffering from some medical illness that affected his mental capacity. Some examples of such illnesses are delusions, Alzheimer’s disease or dementia.

If the will appears to be rational on its face the person attacking the will will have to prove that at the time the will was created the testator did not have testamentary capacity. If the will appears to be irrational there is a presumption that the testator did not have the mental capacity to make the will. In that case the person relying on the validity of the will must satisfy the court that the testator was of sound mind.

A testator must not only have the mental capacity to make the will but must also know and approve the contents of the will at the time the will is signed by him. A will can also be challenged on the basis that the testator did not know and approve the contents of the will. Once it proved that a testator did not know and approve the contents in a document purported to be his will — that will is invalid and cannot be admitted to probate.

Once the will is duly executed with all the required formalities there is a presumption that the testator did in fact know and approve the contents of the will. However, the validity of the will may be challenged where circumstances surrounding the will appear to be suspicious or in cases where the testator was blind, illiterate or in some cases where the testator was affected by mind-distorting substance, such as drugs, which could directly hinder his ability to know and approve the contents of his will. In those circumstances the person seeking to rely on the will has the burden of proving its validity.

Undue influence

The validity of a will can also be challenged on the basis that it was made by the testator under the undue influence of another person. In order for the validity of the Will to be successfully challenged on the basis of undue influence the person attacking the will must prove that the testator was coerced into making a will or a part of a will which he did not want to make. Undue influence must be exercised in relation to the will itself and it must be proved that in those circumstances the testator was not acting as a free agent but instead acting under the control of someone else.

Undue influence may take different forms; it does not have to be physical coercion but can also be evident in circumstances where significant pressure is put on a weak and feeble testator.

Since the testator cannot give evidence directly, it is often difficult to succeed on this ground. While it may be suspicious that the testator left all of his assets to his favourite Chinese restaurant, the person attacking the validity of the will may have a difficult time bringing tangible evidence to support his claim of undue influence!

A will can be challenged by starting probate proceedings in the Supreme Court of Jamaica. If you suspect that a will may be invalid for any of these reasons it is important for you get into contact with an attorney-at-law, as it is imperative that you to act quickly before the will is probated and the estate is administered.

Natasha Rickards is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Property Department. Natasha may be contacted via natasha.rickards@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.