Contentious Probate: Challenging or Contesting a Will

Contesting a Will or the validity of a Will is a specialised area of the law in which there is no substitute for proper advice.

Whether you are bringing the claim or defending it, our expert team can help.

What are the grounds for contesting a will or claiming a will is invalid?

The Court will only consider claims that a Will is invalid for specific reasons:

• Lack of testamentary capacity (eg dementia, Parkinson’s, memory loss or impaired memory, being of “unsound mind”)
• Lack of knowledge and approval
• Undue influence – (eg coercion or duress)
• A fraudulent or forged Will
• Lack of valid execution of the Will (eg Will not properly witnessed or signed)
• The Will needs to be rectified or there is a dispute about the way in which the Will should be interpreted.

If you think there are grounds then read our extensive guide to contesting a Will…

The Will was not properly executed:

For example,

Nan did not sign the Will.

the witnesses were not there at the same time as mum signing her Will.

dad didn’t speak English and the Will wasn’t read to him when he signed it.

The person who made the Will lacked the requisite mental capacity at the time the Will was made:

For example,

Mum had early vascular dementia and Alzheimer’s when she made her Will.

Grandad made his will but was always confused and would forget things. He had been referred to the Memory Clinic.

The person who made the Will was unduly influenced in to doing so:

For example

I want to fight mum’s will.

my sister brainwashed my dad.

my brother cared for my dad and would always influence his decisions including the will so nothing has been left for me.

my mum’s friend would always tell her what to do and now my mum has left everything to her.

I know they were not my dad’s wishes so someone has influenced him.

My dad was controlled by his carer.

I was stopped from seeing my mum when she was dying.

I wasn’t allowed in the house when my grandad was ill.

The person who made the Will did not know of/approve its content.

For example,

Mum was partially blind so could not read the will before she signed it.

Dad was ill so he asked my sister to sign the will in his behalf without reading it first.

Dad didn’t speak English and the will wasn’t read to him when he signed it.

Wills can also be challenged or contested if there is an issue with the drafting or construction of a Will so that its meaning is unclear or if it is suggested that a Will is a forgery, a fake or a fraudulent document.

There are also strict rules about who can and cannot witness a Will.

• The Will must be in writing and signed by the testator or signed by someone else in their presence, who has been directed to do so by the testator.
• It must appear that the testator intended by their signature to give effect to the will.
• The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time.
• Each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness.
• The legal presumption is that a will has been validly executed unless there is evidence to the contrary such as doubts over any of the above factors.

It is for the person arguing that a Will is not valid to prove their case – a Will is presumed valid unless (and until) proven otherwise.

Lack of testamentary capacity.

Lack of testamentary capacity is something that has to be proven by the person raising the challenge. It is entirely possible for someone to be old or suffering from early forms of dementia but still have the capacity to make a Will.

For a Will to be valid the person making the Will must:

• Understand the nature and extent of their Estate,
• Understand that they are making a Will and the effect of that document,
• Understand who they are including in their Will (and who they are leaving out) and what the consequences of that will be,
• Not be suffering from any “disorder of the mind.”

Testamentary capacity is a very individual thing and medical evidence will often be required to identify whether a Will can be challenged successfully on this ground.

Undue Influence.

If someone is pressured or coerced into drafting their Will in a particular way this will be grounds to say that the document is invalid.

Proving undue influence can be very difficult, particularly since the person who was influenced is usually no longer able to tell us what has happened.

The evidence required to show undue influence or coercion has to be of a very high standard – there is no automatic presumption that someone has unduly influenced the maker of the Will.

Lack of knowledge and approval.

To make a valid Will a person has to know that they are making a Will and be fully aware of the content of it.

To challenge a Will on this ground successfully you have to show that the person who made the Will did not know what they were doing or was not fully aware of the provisions of the Will.

Fraudulent or forged Wills.

If there is a suspicion that the signature on a Will is not that of the person who supposedly made it, it may be forged. Where a Will can be proven to have been forged, it can be declared invalid.

If there is a challenge to a Will on the grounds that a fraud has led the person making the Will to draft it in the way that they have – because, for example, they have been misled about something – the Will can also be declared invalid.

If a challenge is successful the last valid Will is the one that will apply. If there was no previous Will the Intestacy Rules will govern what happens to the Estate.

Rectification and construction of Wills.

If a Will does not accurately reflect the person’s wishes because of an error in it, it can be possible to correct that error to give effect to the wishes of the person who has died. This can also be achieved in circumstances where it can be shown that the person who drafted the Will did not properly understand the wishes of the deceased.

In other cases, the wording of a Will can be open to interpretation and may need to be clarified. This requires the construction of the Will to be considered so that the deceased’s actual wishes can be brought into effect.

For further advice please contact our Specialist Team on 0800 088 6004, or enquiries@wilsonbrowne.co.uk