Contesting a Will: Introduction
There is often confusion around contesting a will. When a person dies, the administration of their estate is dealt with in line with their will or under intestacy rules if there is no will. In our article last week, we explained why you should create a will. Without a professionally drafted will, interpreting the wishes of the deceased can often be difficult and mistakes can be made in the distribution of the estate. Contentious work by its very nature, can be difficult work to undertake. If you suspect that the will does not reflect the true intentions of the person making the will (the ‘testator’), or you suspect it has not been made correctly, speak to our experts. As a firm, we have decades of experience resolving disputes and our experts can assist you should you wish.
Why seek advice about contesting a Will?
Will disputes can be both legally complex and emotionally draining from the outset. We advise that you seek good legal advice from the beginning. We can provide an expert in relation to the above grounds who will assist you in contesting a will. Given the amount of investigative work involved in challenging a will, the process can be costly. We will offer you a competitive rate which you can discuss with one of our experts at a later date.
Where the validity of a will is questioned or challenged, the executor, or a person interested under the will, advances it in a contentious claim before the court, joining any persons prejudiced by the proceedings as parties. If the claimant is successful, the court pronounces in favour of the will and orders the issue of a grant. In these circumstances, the will is said to be proved “in solemn form.”
Grounds for challenging a Will
- The testator did not have sufficient mental capacity at the time the will was made
- The testator did not understand or was not fully aware of the content of the will
- Someone else interfered with the creation of the will, exerting undue influence
- Claims under the Inheritance Act for reasonable financial provision
- The will has not been signed and witnessed properly.
- The will is a forgery or is fraudulent
Mental Capacity – What is it?
When a person creates a will, they must have the capacity to do so, this is sometimes referred to as ‘testamentary capacity.’ They must understand what they are doing and appreciate the claims that may come of it. No disorder of the mind must delude their ability to make an informed decision. The test for capacity is now embedded in statute, namely, the Mental Capacity Act 2005. Should a claim be brought on the basis that the testator did not possess mental capacity to make a will or codicil, it is for the Claimant to prove this.
The creator did not have sufficient knowledge of the Will’s contents
For a will to be valid, the person who creates it must understand and approve the contents. Generally speaking, this is presumed when the will is correctly executed but there are circumstances where the could may require evidence to iron out disputes. Firstly, if the person is deaf and/or dumb, extra care should be taken to ensure they understand the contents. Likewise, if a person is paralysed and cannot write or speak. If the will was signed by the testator’s agent, then a court could request evidence to clarify this was the testator’s wishes. A court may also require knowledge to determine knowledge and approval when the creator of a will is blind or illiterate.
Undue Influence – How it is exerted
Where it is alleged that somebody has unduly influenced the person making a will then the burden is on the person making the claim. There must be evidence to support such a statement. There must also be reasonable grounds to believe that this statement is true in the circumstances. For example, a vulnerable lady is known to be frightened of her son. The son makes untruthful accusations against her other son and his wife. This inteferes with the lady’s judgment and discretion when she makes creates her will. It is likely the will could be contested under these circumstances. The case of Chin (Deceased, RE  EWHC 523 is another good example of undue influence.
Claims under the Inheritance Act – Reasonable Financial Provision
It may be possible for those who were dependent on the person who has died to claim ‘reasonable financial provision.’ Usually, this is the spouse or civil partners of the deceased and sometimes children. This can often apply even where there is no express clause within the will of entitlement. There are very strict time limits associated with bringing a claim under the Inheritance tax. It must be claimed within six months. There are exceptional circumstances where this can be extended but this is granted sparingly.
Understanding the Formalities of the Will
The formalities of a will are found in a very old piece of legislation, the Wills Act 1837. This clearly sets out the requirements, or ‘formalities’ of creating a will. We always advise against homemade wills because you will miss out on the crucial advice tailored to your circumstances and often we find that the formalities are not followed when a will is homemade. For a will to be valid, it must be in writing, signed by the person creating the will. The person making the will must possess an intention to create a will. Two people must witness the maker’s signature. The witnesses must have knowledge that the will has been signed by the person intending to make the will.
Fradulent Creation of a Will – An example
Any allegations of fraud should be not raised without credible evidence to support the statement. For example, a claim of fraud could be established when a person makes statements they know to be untrue to a testator with an intention to deceive him for personal gain and they can prove they are true. This could later to lead to revocation of a will or codicil.
Why choose us?
We have dedicated experts with a wealth of experience in this field who are willing to investigate your claim and assist you every step of the way. We offer a competitive rate for our services and we can advise you on potential costs from the outset. For more information, please get in touch referencing this article.
01228 739 907