Contentious probate solicitor Jack Dray, who has a background in criminal law, looks at how to challenge a fraudulent Will.
One of the cornerstones of the law of England & Wales is the concept of testamentary freedom. This gives a person making a Will (known as the testator) the freedom to dispose of their assets exactly as they choose.
However, this does not mean that the validity of a Will cannot be contested. And when the contents of a Will are not as people expected, one thing often considered is whether there has been fraud.
What is a fraudulent Will?
Fraud can be described as the intentional use of dishonesty or deception in order to make a gain (usually financial) or cause a loss to another.
Typically, fraudulent Wills arise in the following circumstances:
- The testator’s signature on the Will is forged.
- The testator was unaware that what they were signing was a Will.
- Where the Will has deliberately been tampered with or destroyed.
- The provisions in the Will are significantly different from those in an earlier Will.
- Where the testator has been presented with false information to persuade them to either cut someone out of the Will or make the Will in certain terms – this is known as fraudulent calumny.
- The Will does not comply with the formalities required by law, namely:
- The Will must be in writing;
- The Will must be sign by the testator in the presence of two witnesses; and
- The two witnesses must sign the Will in the testator’s presence.
What to do if you think a Will is fraudulent
If you suspect foul play in the creation of a Will, it is important to act quickly and speak to a specialist solicitor. The solicitor can investigate whether the Will is genuine. This may include the instruction of a handwriting expert to assess the signature on the Will.
What happens if you successfully challenge a fraudulent Will?
The legal validity of the Will can be challenged if there is evidence to show that it was forged or based on fraud. If the challenge is successful, the Will is declared invalid, and if there is an earlier Will, then this is admitted to probate. If there is no previous Will, the estate shall be distributed in accordance with the Intestacy Rules.
How we can help
If you would like a free consultation to discuss how to challenge a fraudulent Will then contact our legal helpline.