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23 July 2020
Wills differ from contracts and other executed documents in one key way: unlike other documents, wills take effect only on the death of the maker (the testator). The testator is unavailable to determine whether their will is valid and constitutes their true intentions. Thus, the validation and interpretation of a will is rather unique with respect to the significance of the surrounding circumstances and the identity and status of the parties involved.
As such, it is advisable to not only prepare a will that is clear and legally valid, but also ensure that suitable safeguards have been implemented to fortify it against any anticipated challenge. This article discusses the legal grounds on which a will may be challenged and some of the precautions that testators can take to help validate their will and ensure that their wishes are carried out.
After a testator passes away, their will may be challenged before a court by any person who claims to have an interest in the estate. If the court finds that the challenge is sustainable based on the evidence before it, 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 had a lack of testamentary capacity and was not of 'sound disposing mind' (ie, did not have the cognitive powers to understand the nature and effect of the dispositions made in the will). 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 its preparation. The courts will also examine whether a will is a forgery or was prepared by fraud.
To ascertain whether a will is valid, the courts will examine all of the surrounding circumstances which led to its preparation. If any circumstances appear to be suspicious, the courts will likely be hesitant to declare the will valid. Such suspicious circumstances include:
The onus is generally on the person relying on the will (heirs or executors) to prove its valid execution and satisfactorily explain any suspicious circumstances surrounding it (whether in the court's opinion or alleged in case of a challenge). As noted above, testators are not available to aid heirs or executors, so can do so only through materials which they leave behind.
Thus, if a testator anticipates that their will may be challenged, in addition to writing a clear and unequivocal will, it is prudent to leave behind adequate supporting evidence.
The following safeguards can be implemented to ensure that a testator's wishes are followed:
If the testator cannot read the will, it should be read out to them and explained. The evidentiary value of the recording will be greater if it is clear, visible and audible, there is no distortion or unnecessary editing and the date and time are embedded. The original recording should be kept in a sealed envelope along with the will.
These safeguards should also be implemented when amending a will through a codicil.
Implementing adequate safeguards when preparing a will should reduce the risk of a challenge being upheld and help to give effect to the testator's wishes. However, these are not formalities mandated by law to constitute a valid will or codicil, but rather precautions which the courts have regarded as helpful in supporting the validity of a will.
The courts will undoubtedly appreciate such safeguards being taken, as they 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".
For further information on this topic please contact Radhika Gaggar or Shaishavi Kadakia at Cyril Amarchand Mangaldas by telephone (+91 22 2496 4455) or email (email@example.com or firstname.lastname@example.org). The Cyril Amarchand Mangaldas website can be accessed at www.cyrilshroff.com.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
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