Contesting a Will is a complex and often emotionally charged process. Each Will dispute is different, and navigating the legal steps involved can be daunting. A Will should reflect the true wishes and feelings of the person making it (the testator). A person making a Will has testamentary freedom.
Where a Will appears to have been properly executed, the courts presume that it is valid unless evidence proves otherwise. If the claim is successful, a Will is deemed invalid, meaning it is not legally binding and cannot be used to decide who should administer an estate or how the estate should be distributed.
Grounds to contest a will
There are several legal grounds on which a will can be contested, ranging from concerns about the testator’s mental capacity to issues of fraud or undue influence. Understanding these grounds can help determine whether a will is valid and legally enforceable.
Lack of testamentary capacity
For a Will to be valid, the testator must have a sound state of mind at the time of making the Will. They should understand the effect of the terms of their Will, including the impact this Will have on their estate and beneficiaries.
Lack of due execution
For a Will to be valid it must be in writing and clear that the testator intended to give effect to the Will by signing it or directing someone else to sign it. It should be acknowledged that the signature is theirs and signed by two independent witnesses in the presence of the testator and each other. A Will does not have to be dated to be valid, but this is preferable.
The two witnesses are not required to understand the contents of the Will, instead they must simply confirm that they witnessed the testator sign it. If the Will is ever contested on the ground of lack of valid execution, the witnesses may be called upon to attest that they saw the signature take place. This process helps to prevent fraud and provides evidence of the Will’s authenticity.
Lack of approval or knowledge of the will
Where a person making the Will is not aware of the contents, this is seen as lack of knowledge and approval. This is different to a lack of testamentary capacity, as the testator may have the mental capacity to make a Will but not properly understand and approve its contents when signing.
Undue influence
To succeed in a claim for undue influence, it must be proven that the testator did not make independent decisions and excessive pressure, or coercion was used to persuade them to change their Will. This could include cases of manipulation or isolation of the testator. The burden of proof required to establish undue influence is high, evidence will be considered from the wider context of the case.
Fraud or forgery
Fraud can take place in various ways. A common example in the context of Wills occurs when the testator’s last valid Will is either destroyed or hidden. In such cases, often the person attempting to commit fraud Will benefit greater from an earlier Will or under the rules of intestacy.
Forgery involves the deliberate act of falsifying a legal document. It may involve forging the testator’s signature or falsifying an entire Will. This is a serious offence and can carry a prison sentence of up to ten years. In these cases, often a handwriting expert is required to analyse the signatures on the Will.
Rectification and construction
Errors, misunderstandings or unclear drafting can result in a Will failing to reflect the testator’s true intentions or result in a Will that is difficult to interpret. In such cases, the court can intervene, the applications for such assistance are known as ‘rectification’ and ‘construction’ claims.
To rectify a Will, the court must be convinced that it does not accurately express the testator’s true intentions because of:
- A clerical error
- A misunderstanding of the testator’s instructions
How to contest a will
If your solicitor considers that a ground to contest a Will has been established, then they will prepare an application and submit it to the Probate Registry; this process is known as a ‘caveat’. If the caveat is issued before a grant has been taken out, this will prevent the grant being issued and pause the distribution of the deceased’s estate. A caveat usually lasts for six months, this period can be extended by application.
Often disputes will resolve through mediation or alternative forms of dispute resolution (ADR). If the parties are unable to reach an agreement, then the claim will proceed to court. Contesting a Will may prevent or delay the estate from being administered until the dispute is resolved.
When can you contest a will?
It is not possible to contest a Will while the testator is still alive, this is because they may decide to change their Will before they die. If you are worried about the circumstances surrounding how the Will was drawn up, you should discuss this with the testator.
If you believe that a Will is invalid, it is important to act swiftly. If you are making a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependents) Act 1975, there is a time limit of six months from the date that the Grant of Probate was issued. There is no limitation on the time to bring a claim to challenge a Will on validity, however, it is important to act without delay to ensure the protection of evidence and avoid issues where the estate has already been distributed.
Who can contest a will?
Anyone may contest a Will if they are concerned that it is not valid. Most often this is someone with an interest in the estate of the deceased, for example where they were expecting to be left a gift but were not or were expecting to receive more than provided.
How Goughs can help
We strongly advise you to seek legal advice if you believe that you may have grounds to dispute a Will and bring a claim. Goughs’ can provide legal guidance to ensure that you have a better understanding of the legal requirements and likelihood of making a successful claim.
