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How to Contest Different Types of Will

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Did you know there are different types of Will? There are, and that means there can be different ways of contesting them.

Normally, the grounds for contesting a will are:

  • Incapacity – the person making the will was not of the right mind
  • Lack of knowledge or approval – they did not understand what they were signing
  • Invalidity – the will was not drawn up correctly, or was not signed in the right way
  • Undue influence – someone has interfered with the making of the will, coercing the person making it to change it
  • Fraud – the signature on the will has been forged
  • Reasonable financial provision – beneficiaries to the estate have a right to it but have either not been named in the will or adequately provided for.

Contesting a Living Will

A Living Will is also known as an advanced decision. In it, the individual expresses their wishes to refuse medical treatment in future.

This advance decision is legally binding meaning those caring for the individual must follow their instructions (although it is only used once you lose capacity to make decisions yourself).

The Living Will must be specific about the circumstances under which the person making the Will would not want specified treatment. It must also be clear whether they want to receive the treatment, even if refusing it would lead to their death.

A Living Will cannot be used to request to end a life, only to refuse certain treatment.

Many of the same grounds for contesting a regular Will could apply to a Living Will, such as lack of capacity, lack of knowledge or approval, or undue influence. You cannot, however, contest a Living Will simply because you disagree with what is written in it.

Contesting a Holographic Will

A holographic will is a Will that the person making it has handwritten and signed themselves. These kinds of Wills are still legally binding, providing they are compliant with Section 9 of the Wills Act (1837):

  • The Will must be written and signed by the person making it, with the intention of creating a valid Will
  • Two people must witness this signature, and then sign the Will themselves.

Challenges to a holographic Will can be made on the grounds outlined above. It is usually the case that a holographic Will may be more likely to contain errors which make it invalid or create a full of partial intestacy (where a gift set out in the Will fails because it does not work). It is always better to seek professional, legal guidance or input.

Contesting a Forged Will

Obviously, if you believe a Will is forged, then these are the main grounds on which you will contest it. Generally, a forged Will is one that is made without the deceased’s knowledge, however it may also be fraudulent because the signature on it is forged.

Will forgery can be hard to prove legally, so evidence is critical.

There are typical warning signs to alert you to the possibility a Will is forged, such as:

  • Sudden changes to a Will, or the making if a new type-written Will when previously solicitors have always been used
  • An unusual signature for the testator on the Will
  • Witnesses who are not known to the testator and who may not in fact exist
  • A Will that is out of keeping with a previous pattern of Will-making by the testator

To a certain extent, initial feelings you have about a forged Will may come down to instinct, but to prove it will require evidence.

This can mean acquiring copies of previous Wills; obtaining evidence from the people who supposedly witnessed the Will and seeking expert handwriting evidence as to whether the testator’s signature is genuine or not.

Contesting a Will with a No Contest Clause

A no contest clause in a Will is also known as a forfeiture clause. Essentially, a no contest clause states that the beneficiary will forfeit their inheritance if they challenge the Will.

This can raise the stakes should you decide to contest a Will, since you stand to lose everything if your challenge is unsuccessful. Therefore, before contesting a Will, check whether it contains a no contest clause.

However, the presence of this clause does not prevent you contesting a Will on any of the grounds we have listed. But what it does mean is that you should be sure of a watertight case, with solid evidence, before proceeding.

If you can prove that the Will is invalid, then this would mean the no contest clause would no longer apply.

For advice on this topic, talk to your solicitor – we recommend that they are a specialist Contentious Probate lawyer such as Jennifer Laskey. Alternatively, feel free to call us for a FREE initial discussion, or fill in our online contact form.

Jennifer Laskey

Posted:

Jennifer Laskey

Partner

Jennifer is a Solicitor and Partner with 21 years experience advising clients in relation to litigated Will disputes. A Legal 500 recognised lawyer, Jennifer is a full member of ACTAPs and has resolved multi-million pound disputes for clients in Courts across England.