The 5 Grounds for Contesting a Will

Author:
Robert Godfrey
Partner, Head of Professional Negligence and Dispute Resolution
Date:
15/07/2021

In England and Wales, there are 5 different grounds for contesting a Will. But challenging a Will can be difficult, especially when it comes to proving that a Will was made incorrectly or unfairly.

If you’re looking to contest a Will, we recommend getting expert legal advice to see if you’ve got a strong case. Our Contentious Probate Solicitors have helped many people successfully contest a Will or make an Inheritance Act Claim after they were wrongfully left out of a Will.

Get in touch today to for a free, no obligation assessment of your case. Ask if we can deal with your case on a No Win, No Fee basis.

Call us on 08002605010 or request a callback and we will help you.

Grounds for Contesting a Will

1. Testamentary Capacity

Testamentary capacity is different to ordinary capacity.
If someone has testamentary capacity, it means they have the mental capacity to understand the nature of the Will they’re making. If they’re not of sound mind at the time of making their Will, it’s legally invalid.

To have testamentary capacity, they must:

      • Understand what it is they’re doing and what impact it will have
      • Understand the extent of what they’re giving away and who to
      • Understand the impact of including or excluding certain people from their Will
      • Have no disorder of the mind that affects their ability to understand the nature of what they’re doing

Proving Testamentary Capacity 

Proving lack of testamentary capacity can be difficult, especially if you’re in disagreement with other family members. An initial option may be to obtain an expert (retrospective) opinion from the deceased’s own GP.

Our Contentious Probate Solicitors can access the medical records of the person who died and obtain a specialist expert opinion from an independent medical adviser. This can be done either by an initial review of the deceased’s medical records or by a Court compliant expert report. Either will help to determine whether the person who died lacked testamentary capacity when making their Will.

2. Lack of Knowledge or Approval

If the person who made the Will didn’t know or understand the contents of their Will, or didn’t approve it, then it won’t be legally valid.

This might be because:

        • They’re deaf, mute or blind
        • They’re unable to write because of low literacy levels or paralysis
        • They were frail, ill or vulnerable when making the Will
        • Someone else signed the Will on their behalf

Proving Lack of Knowledge or Approval 

The evidence needed to prove that your loved one didn’t or couldn’t approve their Will may depend on their medical condition at the time of making their Will.

If you think an illness or condition affected their knowledge or approval of their Will, our Contentious Probate Solicitors can request medical records from your loved one’s GP to get an expert opinion.

We can also speak to individuals who witnessed the making or signing of the Will to find out what the circumstances were.

3. Undue Influence

Undue influence is when someone is pressured or forced into making or changing their Will. Usually, the person putting the pressure on is a close family member who wants to make sure that they’re benefitting from the Will in the way they’d like to.

This can happen through:

          • Verbal bullying or manipulation
          • Purposefully giving false information to the person making the Will
          • Physical violence
          • Guilt tripping

Proving Undue Influence 

It can be very difficult to prove undue influence as it usually takes place behind closed doors, by a person in a position of trust or power over the person who died.

Some signs to look out for include:

            • Sudden or contradictory changes e.g. the Will has been amended to include decisions that you think go against what your loved one previously expressed to you
            • A new beneficiary who was previously excluded from the Will is now set to inherit a share of the Estate in a new Will
            • A current beneficiary is now set to inherit a larger share of the Estate in an updated Will

If you’ve got any reason to believe that the person who died was coerced into making a Will that doesn’t truly reflect their wishes, we can advise you on your best course of action and help you gather evidence to back up your case.

4. Forgery or Fraud

A Will is invalid if it can be proven that it was forged. It might be that the entire Will has been altered or just the signature.

If a Will is fraudulent, this means that the contents of the Will goes against the wishes of the person making it, because of false information e.g. a beneficiary might have lied about another beneficiary to get them cut out of the Will.

Proving Forgery or Fraud 

If you believe a Will was forged, it’s possible to get the opinion of a handwriting expert. They can assess the signature and/or Will and compare it to other samples of your loved one’s handwriting and signatures to decide if it’s genuine.

Proving fraud on the other hand can be trickier, as like undue influence, this tends to happen in private.

5. Issues with Drafting the Will

A Will is invalid if it was drafted incorrectly and doesn’t meet the legal requirements.

For example, it may be that the Will:

              • Wasn’t signed or witnessed properly
              • Wasn’t in writing, either handwritten or typed
              • Wasn’t made official before the person died, even if it was intended to

Proving a Will was Drafted Incorrectly

It may be that your loved one wasn’t aware of the legal requirements for making a Will, or the mistakes could be down to the Solicitor or Will Writer who helped them draft it. For example, a clerical error could lead to mistakes in the Will that end up changing someone’s wishes.

If this is the case, you could make a Professional Negligence Claim against the Solicitor.

Whatever your reason for wanting to contest a Will, our Contentious Probate Solicitors can support you. We understand how difficult Will disputes can be, especially when you’re already struggling with the emotions of losing a loved one.

We’ll offer friendly, expert legal advice tailored to your individual situation, so we can help you get the best outcome without any added stress.

For free initial case assessment call our Contentious Probate Solicitors

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