How to Challenge a Will in Trinidad and Tobago
A will can be challenged in Trinidad and Tobago if it was not properly signed and witnessed, if the person who made it lacked the mental capacity to do so, if they did not know and approve its contents, if it was procured by undue influence or fraud, or if it was forged. The challenge is brought as a contentious probate claim in the High Court, and the first practical step is often to enter a caveat so that no grant of probate issues while the dispute is resolved.
Challenging a will is serious and can be costly, but where the grounds are real, the court will set the will aside.
The grounds for challenging a will
1. The will was not properly executed
A valid will must meet the formal requirements of the Wills and Probate Act. In broad terms, it must be in writing, signed by the person making it (the testator), and signed in the presence of two witnesses who are present at the same time and who also sign. A will that does not meet these requirements may be invalid.
A beneficiary who witnesses a will may lose their gift, even if the will itself remains valid.
2. Lack of testamentary capacity
The testator must have understood that they were making a will, understood the nature and extent of their property, and appreciated who might have a claim on their estate. Dementia, serious illness or heavy medication at the time of signing can raise doubts. Medical records and the evidence of those who saw the testator at the time are often decisive.
3. Lack of knowledge and approval
Even a person with capacity must know and approve the contents of the will. This becomes an issue where, for example, the testator was blind, could not read, or where the person who prepared the will benefits substantially from it. In these circumstances, the court looks for clear evidence that the will was read over and understood.
4. Undue influence
A will is invalid if the testator was coerced into making it — pressured to the point that the will reflects someone else's wishes rather than their own. Undue influence is hard to prove and requires strong evidence; persuasion or affection alone is not enough.
5. Fraud or forgery
Where the signature is not genuine, or the testator was deceived about the contents of the document, the will can be set aside. Handwriting experts and the evidence of the witnesses become central.
6. Revocation
A later will, or the destruction of a will with the intention of revoking it, may mean that the will being propounded is not the last valid will.
A real example
Our firm successfully set aside a will and obtained declaratory equitable relief in respect of real property in a written High Court judgment, available on the Judiciary's website:
The steps to take
• Act promptly. Once probate is granted and property is transferred, unwinding the position becomes harder.
• Enter a caveat at the Probate Registry to stop a grant being issued without notice to you.
• Gather evidence — copies of the will and any earlier wills, medical records, and the names of the witnesses and the person who prepared the will.
• Request information from the executor and the attorney who drew up the will, including their notes of instructions.
• Bring a contentious probate claim in the High Court if the matter cannot be resolved.
If the will is set aside, the estate is distributed under the previous valid will or, if there is none, under the rules of intestacy.
Who can challenge a will?
Generally, someone who would benefit if the will were set aside — for example, a beneficiary under an earlier will, or a relative who would inherit on intestacy.
If the will is valid but unfair
A will may be perfectly valid and still leave a dependant without reasonable provision. In that case, a spouse, child or other qualifying dependant may be able to apply to the court for financial provision out of the estate under the Succession Act. Strict time limits apply, so seek advice quickly after the grant is issued.
Frequently asked questions
How long do I have to challenge a will?
There is no single deadline for every ground, but delay can seriously weaken your position. Applications for financial provision have a strict time limit that runs from the grant.
Who pays the legal costs?
Costs usually follow the outcome, but the court has discretion and can consider the parties' conduct in making an award for costs.
Can I stop the estate being distributed while I challenge the will?
Yes. A caveat, and where necessary an application to the court, can protect the estate pending the outcome.
If you think a will is invalid or would like legal advice about your rights? Call 1 (868) 235 6016 or email info@brentkali.com for a confidential consultation. |
This article is general information and not legal advice. Every case depends on its own facts; consult an attorney about your situation.
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