22nd March 2021 ❘

Contesting a Will

The past year, a year like no other, has seen a further increase in contentious Trust and Probate disputes, reflecting the continuous rise in inheritance disputes seen over the last decade.

Wills often cause friction and disappointment. In some circumstances they can be legitimately challenged. In this blog we consider the main legal grounds available to contest a Will:

1. Lack of Testamentary capacity

This means that the person making the Will does not have the required mental capacity needed to make a valid will. In order to demonstrate ‘sound mind’ the person making the will must:

  • Understand they are making a Will;
  • Understand the effect of the Will;
  • Know the nature and value of their estate;
  • Understand the consequences of including and excluding certain people under their Will; and
  • Not be suffering any ‘disorder of mind’ which may influence their views.

2. Lack of valid execution

A Will is capable of being challenged where it can be demonstrated that it has not met the legal requirements necessary to make a valid Will. The following criteria must be met:

  • The Will must be in writing and signed by the person making the Will or someone else in their presence under the testator’s direction;
  • It must appear that the person making the Will intended by their signature to give effect to the Will;
  • The signature must be made in the presence of at least two witnesses who should be present at the same time; and
  • The strict rules about who is able to witness a will should be adhered to.

3. Lack of knowledge and approval of the will

The validity of the Will can be challenged where it is believed that the person making it did not have knowledge of the Will or approve of its contents. It is still possible to bring a claim for lack of knowledge and approval even if it is proven that the person making the will had testamentary capacity and the Will is validly executed.

4.Undue influence or duress

A claim for undue influence can be brought where there is sufficient evidence to prove that the person making the Will was manipulated into making it. Such evidence must demonstrate that there was manipulation, coercion, intimidation or deception which influenced the content of the Will.

5. Fraud or Forgery

Forgery – a Will is invalid if it can be demonstrated that it is a product of forgery, for instance, if someone forged the signature of the person making the Will.

Fraudulent calumny – fraud occurs where, for example, someone lies to the person making the Will and the lies influence the contents of the testator’s Will.

Claims under this ground can also include people destroying versions of a Will for their own gain.

6. Inheritance (Provision for Family and Dependants) Act 1975

Under the Inheritance Act you cannot challenge the validity of the Will but can bring a claim against an Estate for reasonable financial provision in the event you have been excluded from a Will or the Will doesn’t provide you with reasonable financial provision.

Whether you are bringing a claim to contest a Will on one of the grounds above or you are defending a disputed Will or Estate, our specialist team of solicitors can help.