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What are the grounds for contesting a Will?

There are a number of grounds on which a Will can be contested, or challenged. But before we explore these in this legal guide, and our accompanying legal guides Who Can Contest a Will and How to Contest a Will, it is vital to remember that if you think you do have a reason to make a claim you should take legal advice as soon as possible for a number of key reasons:

  1. In relation to some grounds for contesting a Will, there is a strict time limit of six months to make a claim from the date the Grant of Probate was obtained;
  2. You may have several grounds to make a claim and some may have a higher chance of success than others or may be easier to prove. A solicitor can help you identify these;
  3. You may need to take preventative legal action to maximise your chances of success. For example, you may need a solicitor to apply for a ‘caveat’ which prevents the assets of the estate being distributed until the dispute is settled.

Grounds – legal not emotional

You cannot contest a Will based on raw emotion or because you don’t like how the assets have been distributed. You must have valid legal reasons to contest a Will.

Invalid Wills

A Will must fulfil certain legal and procedural requirements to be deemed legally valid. It may be declared invalid for reasons including:

The Will was not properly executed

To be valid, a Will must comply with strict legal requirements under the Wills Act 1837, meeting one or more of the following criteria:

  • The Will must be in writing, signed by the person making the Will (the testator) or signed by someone the testator has asked to do so in their presence;
  • It must appear that the testator wanted their signature to give effect to the Will;
  • The testator must sign the Will in the presence of two witnesses (who can’t be beneficiaries or married to a beneficiary of the Will), present at the same time;
  • Each witness must attest and sign the Will, or acknowledge the signature, in the presence of the testator.

There is a legal assumption that a Will has been validly executed unless there is evidence to the contrary as outlined above.

The testator lacked testamentary capacity.

In order to make a valid Will, the testator must be considered to be of a ‘sound mind’ according to principles established in the 1870 case of Banks v Goodfellow. These state that the person making the Will must:

  • Understand that they are making a Will;
  • Understand the effect of that Will;
  • Know the extent, value and nature of their estate;
  • Understand the consequences of including and excluding certain people in their Will;
  • Not be suffering from any ‘disorder of mind’ – for example Alzheimer’s Disease or dementia – which might influence their views.

If you think any of the above are true, it could be the starting point for contesting a Will, but you have to be able to produce evidence that the testator was not mentally capable of making a Will at the time.

This evidence needs to be in the form of medical or psychiatric assessments from experts, the testator’s own medical records and testimonies from witnesses who had contact with the testator at the time the Will was made proving the testator had a condition which affected them when making their Will. This might be a long term degenerative illness or drug or alcohol use.

The testator lacked knowledge or approval of the Will they were signing

It’s possible that although someone has full testamentary capacity, they did not know, and therefore could not approve, the contents of a Will they put their name to. This might be because:

  • They were blind;
  • They couldn’t read or write;
  • They were deaf or dumb;
  • They were unable to speak;
  • They were unable to write;
  • They were paralysed.

If any of these apply, it must be proved that the testator knew and understood the content of their Will.

There is evidence of undue influence

If the testator was forced to make a Will, it is invalid. Demonstrating this means proving there was coercion, manipulation, deception or intimidation by someone to put pressure on the testator to influence the content of the Will in their favour when it was made. This includes things like using threats, physical violence and telling lies.

This is a key reason for contesting a Will but for undue influence to be proved, the Court has to conclude that the testator was likely to have thought: “This is not what I want but I have no choice.”

Fraudulent or forged Wills

If you believe a Will has been forged, or the signature has been forged, or some other fraud has taken place, it may be grounds for claiming the Will is invalid. Unfortunately, it is usually very difficult to prove fraud and often very expensive too.

Challenging, rather than contesting a Will

It could be that a Will is perfectly legal and legitimate, but although you can’t contest it, you can challenge it if you are not happy with certain provisions made within it.

Lack of financial provision made for dependants in the Will

When certain categories of people feel they have not been sufficiently provided for under the terms of a Will or intestacy, a claim for reasonable financial provision can be made under the Inheritance (Provision for Family and Dependants) Act 1975.

A dependant is defined as anyone who the testator was maintaining financially (or had an obligation to) at the time of their death. Usually, claimants are surviving spouses, cohabitees, children or people treated as a close family relative but it is always worth checking to see whether you may be able to claim.

Recently, the courts have shown a greater willingness to allow claims, even where a claimant was not being financially supported by the testator at the time of death.

But they promised me…

Proprietary Estoppel is a legal challenge you can use if you feel someone gave you assurances in their lifetime that you would inherit land or property but then didn’t honour this in their Will. If a promise like this was not fulfilled, and you were left at a disadvantage as a result, it could be a legitimate challenge.

Challenging the competency or conduct of executors

If you have an issue with the way executors, trustees or personal representatives appointed in the Will are acting, even if you don’t dispute the legitimacy of the Will itself or its contents, you may be able to challenge their conduct or competency.

Other grounds

These include:

  • When the original Will is lost;
  • When someone other than the testator claims a property disposed of under the terms of the Will was either owned or part owned by them;
  • When there are errors in the drafting of a Will. This could be when a clause is written incorrectly or due to an administrative error like the wrong Will being signed by mistake.

For help and advice about contesting a Will, please contact Wards Solicitors’ Probate Disputes team.

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UPDATE August 2020

Wards Solicitors is open and our teams continue to work on existing cases and take on new business and clients.

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Wards Solicitors LLP