Contesting or challenging a will is not an easy process and it can be difficult to even just get the process started. Of all wills passed through, 99% of them do so without any issues and in a court of law, a will is seen to be the voice of the person who left the will as they are no longer physically here to speak about their wishes. For this reason, courts tend to stick very stringently to wills, however, there is still room to content one if you feel that you have a valid legal case for doing so. Usually, a spouse is the most successful when it comes to challenging a will and it also tends to be that cases of testamentary capacity or a person being unduly influenced are the most successful in court.
It is important that you seek the best legal advice that you can in these situations. You can find solicitors by visiting the website the-inheritance-experts.co.uk – they have UK wide solicitors who offer fixed fees. You can claim a free initial consultation on their website and information on how they can help you contest a will.
If you are successful in challenging a will, you can void it in its entirety or just part of it, depending on what your claim is. If the whole will is voided, then it is up to the courts to distribute the assets in the will as if it never existed. When distributing the will, it will be guided by family relationships and intestacy laws.
In this article, we will be outlining the grounds that you can use to contest a will if you have found yourself in this situation.
All adults are presumed to have testamentary capacity and under the law you have to be 18 years or older to create a will. Minors cannot make a will as they are deemed not to have the testamentary capacity needed to create a will. They also need to pass the 1870 Banks v Goodfellow model to show that they are of good mind to create a will.
In some cases, there can be claims made against a will to challenge the adult’s testamentary capacity and this normally comes under the adult having an illness such as dementia. Other claims that can be made under the ground is that the adult making the will did so when under the influence of a substance or that they somehow lacked the mental capacity to create a will. If you want to try and challenge a will based on mental capacity then you have to show the testator that they did not know what the consequences of creating the will would be at that time. The person creating the will also has to know the extent and value of the property, who they must provide for and who will benefit from the will that they have created, what a will means, the disposition that they are making and how all of these elements relate to form a distribution of property.
If you think that your family member or loved one did not have the above when creating the will then you can challenge it on the grounds of testamentary capacity. If you are using this reason then you will be obliged to provide evidence that they were mentally incapable of creating a will at the time when they did and this has to be by experts through medical or psychiatric assessments. Medical records play a large role here in being used as evidence and also anyone who was in contact with this person when they made the will as they will be able to testify as to whether or not they were of sound mind.
Fraud or Forgery of a Will
Of course, the most obvious reason as to why you would contest a will in an inheritance dispute is if you think that the will has been forged or it is a fraud. This could also mean that the signature on the will has been forged. However, this type of case when contesting a will can usually be very difficult to prove and it can also be very costly.
No Valid Execution
Another way in which you can contest a will is because of a lack of execution. This simply means that you do not think that the will has been correctly executed. Wills must be compliment with the Will Acts 1837 section 9 and as part of this, any will that is thought to have a lack of valid execution can be contested against. Here are some of the reasons in which a will may not have been properly executed.
- The will has to be in writing and it has to be signed by the testator too. It can also be signed by another person but in the presence of the testator.
- The will has to look as though the testator intended with their signature to make the will valid.
- This signature has to acknowledge by at least two witnesses who are present at the same time.
- Both witnesses have to sign the will and acknowledge the signature in front of the testator.
- A will that has been validly executed is then seen to be legal in the eyes of the law and you must have evidence to contradict this if you feel there was a lack of valid execution.
Another key reason why many people have a case to contest a will is because they feel there has been an undue influence. When you demonstrate undue influence, this simply means that there has been some sort of manipulation, coercion, intimidation or deception involved by another person to put pressure on the person who is making the will. This could be physical violence, confinement or deception that is classed as undue influence. It is important to note here that emotional pleas are not considered to be undue influence. This can include complaining about your financial affairs, reminding someone of all the times you have helped them or letting them know how much you are struggling. While this emotional influence can be seen to be morally questionable, it is still perfectly legitimate in a court of law.
Lack of Knowledge and Approval
If you are looking to contest a will, you may be able to do so if you can give evidence that there was a lack of knowledge and approval in creating the will. When someone is making a will, they have to be aware of what exactly it is that they are signing and they must also have the knowledge of its contents to be able to approve it. This could be because they are blind, illiterate, deaf, unable to write, unable to speak or they are paralysed. If the testator falls under one of these then it has to be proven that they knew and understood the content of their will.
A clerical error or a type can also be a reason to contest a will. Furthermore, if the person preparing the will hasn’t understood their instructions, then this can mean that they will can be contested. You can apply for this to be changed, however, again there has to be clear evidence that of an obvious failure to understand clear instructions.