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Challenging the validity of a will

Trusts and Estates

Challenging the validity of a will

From time to time, a disappointed beneficiary may challenge the validity of a Will, by alleging that the testator lacks capacity to make a Will, that the testator did not know or approve the contents of the disputed Will, or even perhaps that the Will was forged. Such litigation can provide colourful copy for journalists, not least because of the venom with which family disputes may be pursued. Not surprisingly, the courts have adopted rules to limit those who have the standing to bring proceedings to challenge the validity of a Will. A challenge to the validity of a Will may only be brought by a party who has an “interest in the estate” which must be specified in the claim form. A beneficiary, or potential beneficiary (for example, under an intestacy if the Will is held to be invalid) clearly has such an interest. Nineteenth century case law suggested that, for these purposes, a creditor had no “interest in the estate” to allow a challenge to the Will. However, what about the creditor of a beneficiary? Here, the old case law was unclear. It has now been considered by the Court of Appeal in Randall v Randall (2016) EWCA Civ 494.

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