A will with defects may be partially or fully invalidated by a court. Understanding what constitutes a legal defect and how courts address them is important both for those drafting wills and for heirs who may wish to challenge a will they believe is flawed.
Types of Will Defects
Will defects fall into two broad categories: formal defects related to how the will was executed, and substantive defects related to the testator’s capacity or the circumstances of the will’s creation.
Formal defects include: failure to comply with witnessing requirements, improper signature, will not entirely in the testator’s handwriting when required, and other technical failures. Substantive defects include: lack of mental capacity, undue influence, fraud or forgery.
The Court’s Power to Cure Formal Defects
Israeli courts have the power, within limits, to give effect to a will that has formal defects if satisfied that the will genuinely represents the testator’s wishes. This means not every technical flaw automatically invalidates a will.
However, courts are not infinitely flexible. Some defects are serious enough that no cure is possible, regardless of the strength of evidence about the testator’s intentions.
Mental Capacity Requirements
A testator must have had sufficient mental capacity when making the will – they must have understood that they were making a will, known the nature and extent of their estate, known who their natural heirs were, and been free from delusions that affected the will’s provisions.
Wills made by people with dementia, significant cognitive impairment, or severe mental illness may be challenged on capacity grounds.
Undue Influence
A will made under undue influence – when another person has so overborne the testator’s free will that the will reflects the influencer’s wishes rather than the testator’s – can be invalidated. Undue influence differs from ordinary persuasion and requires proof of a coercive relationship.
Challenging a Defective Will
If you believe a will is defective, an attorney will assess the strength of the grounds for challenge, advise on the likelihood of success, and manage the probate proceedings in which the challenge is raised.
