What happens when a Will is contested?
This is a particularly niche area of law and our solicitors are well equipped to discuss a range of options with you to try and resolve any concerns you may have about the execution of a Will. At Ansham White Solicitors, we see court as an absolute last resort and we Will look to resolve any disputes amicably out of court in the first instance.
To start we Will need to establish whether the Will is valid. This is usually by ensuring the document has been signed and witnessed in accordance with s.9 of the Wills Act 1837. Please note that the witness should not be a beneficiary, or the gift is invalid. If you suspect that this is the case, you can contest it on the grounds of its validity.
When contesting a Will, the executor(s) will normally stay outside of any disputes about the Will. This is to ensure that they do not become responsible for any legal costs if there are concerns about how they have handled the estate. The executors may in this instance delay administering the estate for a prolonged period whilst the parties try to resolve the dispute or until the matter is resolved by an Order of the Court.
What are the grounds for contesting a Will?
There are two common grounds for contesting a Will; either the Will itself is invalid due to its execution, or it fails to make ‘reasonable financial provision’ for a family member or someone who was financially maintained by the testator on death.
There are several grounds where it may be possible to question (contest) the validity of the Will. These include:
- Lack of mental capacity of the testator
- Lack of knowledge and approval of the Will
- Undue influence or coercion
- Wills Act 1837; and
- Forgery and fraud.
The person who has died did not have sufficient mental capacity when writing the Will.
This is known as a lack of ‘testamentary capacity’. The law holds that at the time of the testator writing their Will, the individual must be of “sound mind, memory and understanding.” This means that the person making the Will must:
- Understand what they are doing and what effects those actions will have
- Understand the full extent of what they are distributing
- Be able to appreciate the effects of including or excluding certain people from their Will
- Not have a ‘disorder of the mind’ e.g Dementia or Alzheimer’s
The person who died did not have sufficient knowledge and approval
For a Will to be valid, an individual must have understood and approved the contents. Knowledge and approval are normally presumed when the Will is executed correctly and the person had the necessary capacity, however, there are some circumstances where the Court may require additional evidence to prove knowledge and approval was given if there are any disputes:
- This includes where the person is deaf, blind or illiterate.
- Alternatively, where the Will was signed by someone other than the person making the Will at his or her instruction
When there is suspicion that the person making the Will did not know or approve of the Will, those who believe the Will to be valid has the burden of proving that the testator did intend to approve of the Will.
Where someone has hindered the establishment of the Will and exerted undue influence with regards to the allocation of an estate (against the individuals’ requests). The law, does not assume that those in positions of authority over a deceased person being mentioned in a Will is the consequence of undue influence. Instead, the burden of proof is on the individual claiming that that the allocation was consequence of undue influence.
Physical aggression, intentionally providing misleading information and verbal abuse are all examples of undue influence, as is persistently demanding to be listed in the Will.
The Will is a forgery or is fraudulent
A Will is invalid where the written Will or the testator’s signature is forged, or if the substance of the Will is fraudulent. A Will that is considered fraudulent is one that goes against the desires of the deceased individual. Although, similar to undue influence, this does not require duress.
Beneficiaries or non-beneficiaries damaging versions of the Will for personal advantage are examples of these grounds.
A valid Will complies with Section 9 of the Wills Act (1837), and must:
- Be in writing and signed by the testator
- The person making the Will must have signed it with the intention of creating a valid Will.
- Two people must witness the Will maker’s signature. Those witnesses must either be present when the Will maker signs or, the witness must be told by the Will maker that it is his/her signature.
- The witness then either signs having seen the Will maker sign, or signs in the knowledge that it is the Will maker’s signature on the document and that the Will maker did sign it, with the intention of creating a valid document.
Reasonable financial provision
It may also be possible to seek reasonable financial provision if you depended financially upon the person who has died but no such provision has been made in the Will, under the Inheritance (Provision for Family and Dependants) Act 1975. The Act prescribes who is entitled to make a claim on these grounds; normally, spouses or civil partners, cohabitants of two or more years, children, or people who can show they were being supported financially by the person.
For more information regarding contesting a Will, please call Ansham White Solicitors for a free no obligation chat with one of our legal professionals on: 020 8634 5850.