What are the grounds for contesting a will?
Losing someone you love is a difficult and emotional time, made even more challenging if you think that the will may not be a true reflection of your loved one’s wishes.
While challenging a will is possible it is not something to enter into without giving it a great deal of thought. Before you can do this, you must understand what constitutes a valid will and the grounds for contesting. You should also be aware that a successful challenge is not guaranteed to yield a better result than the existing will.
For example, if you challenged the validity of a will and were successful, unless there was a previous valid will, the rules of intestacy would apply. If there was an earlier will then that will would become the most recent and those terms would apply.
What are the requirements of a valid will?
Under Section 9 of the Wills Act 1837, for an order to be valid, a will must be:
- in writing
- signed by the testator (or someone else in the testator’s presence and at his direction)
- the testator must intend when signing the will for it to be valid
- The testator must sign the will in the presence of a minimum of 2 witnesses
If you have concerns about the execution of the will the first thing to do would be to contact the witnesses for further details.
A will that has been properly executed would be valid unless one of the following issues is raised and proved:
- Mental Capacity
- Undue Influence
- Forgery and Fraud
- Rectification
What are the grounds for contesting a will?
Mental Capacity
To challenge on the grounds of mental capacity you must be able to raise genuine suspicion that the deceased lacked mental capacity. If the challenge succeeded, those who wanted to prove the will as valid would need to provide evidence that the deceased did have mental capacity.
There are specific tests which apply to ascertain mental capacity, legal advice should be sought before you go down this route. In short, though, the Mental Capacity Act 2005 sets out a 2-stage test of capacity:
1) Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use? 2) Does the impairment mean the person is unable to make a specific decision when they need to?
Undue influence
For this to succeed it must be proved that the testator was unduly influenced or coerced into writing the will and that they did not wish to write it. Sufficient evidence of this must be presented to the court for this to stand any chance of success as what is being suggested by the challenge is basically fraud.
Forgery and fraud
A will that is proven to be forged in any way would be invalid. Without an earlier will the rules of intestacy would apply.
In order to prove that a will has been forged you should seek the services of a handwriting expert to check the signature. You will need to provide a large number of the deceased’s signatures (originals not copies).
A will can also be challenged on the basis of fraud though this is rare.
Rectification
This challenge happens when the will appears to not reflect the deceased’s wishes because of a clerical error or because there was an error when recording their wishes during the drafting of the will.
These claims must be made within 6 months of the grant of probate being issued. The court will rectify the will if there is a mistake in drafting and to prove this you would need to obtain and present a copy of the solicitor’s or will writer’s file including a statement which details an understanding of the deceased’s wishes.
It could be found that the instructions were understood but that the law was incorrectly applied. This would not invalidate the will but could result in a claim for professional negligence.
When should I challenge a will?
Challenging a will should always be done with legal assistance. The facts must be correctly analysed in light of the law so that you can be fully aware of the possible outcomes and costs.
In claims under the Inheritance (Provision for Family and Dependants) Act 1975, the time limit is six months from the date of the Grant of Probate or Grant of Letters of Administration. In certain other limited probate actions (mainly those brought by beneficiaries), the time limit to bring a claim is 12 years.
If you do wish to challenge a will the earlier you start the better. The more time that passes the harder it will be to track people down and for them to remember any details.
As you can see, there are various ways to challenge a will but you should be aware that it can be a lengthy, stressful and expensive process.
Every case is different and there will be a lot of evidence to gather before an informed decision can be made as to whether or not to contest a will and the basis for the challenge.
Find out more about Death and Bereavement and what to do on the Government website: https://www.gov.uk/browse/births-deaths-marriages/death
If you have any queries about will writing or challenging, please don’t hesitate to contact us.
