Types of challenges which can be made to contest a Will
There are two main types of challenges which can be made to contest a Will. The first category deals with examining the technical and legal aspects of drawing up a valid Will. The second category involves challenging the actual contents of a validly made Will. The possible grounds to dispute a Will are many and varied, and this article focuses on the most common grounds for contesting a Will. If you feel you have a reason to challenge a Will, then it is vital to seek professional probate advice from a probate solicitor at the earliest opportunity, to make sure your rights are protected and the right type of challenge is brought within any time limits that apply.
Technical Challenges
There are strict legal requirements which have to be met before a Will can be regarded as properly made and enforceable. One common ground of contest is seeking to show that the Will was not executed properly. To be valid, a Will must be in writing and comply with strict rules on signatures and witnessing. If these requirements are not present, then the Will may be invalid. Sometimes a Will may be written at a time of urgency, for example, when a person’s health is declining, but this does not mean that the formalities can be ignored. The rules are complex and expert help may be required to determine if the Will has been executed properly.
Capacity
A Will can be contested if there are reasons to believe the maker of it lacked the necessary mental capacity to make a Will. This means that the person has to be of sound mind and able to sensibly express their wishes. Capacity is needed at two stages, firstly when providing instructions for the contents of the Will (or at the time when the person writes it themselves) and secondly when the Will is executed (signed). If the person making the Will did not have the necessary capacity at either stage, the Will may be challenged. This may be based on the lack of mental capacity in the first place or deterioration in capacity between giving instructions and signing the Will. Just because the Will is made with the help of a lawyer does not mean it cannot be challenged on this basis.
Undue Influence
Although it can be difficult to establish, a potentially significant ground for challenging a Will is that the maker of it has been exploited in some way. Where it can be shown that some improper influence was affecting the maker of the Will, it can be contested as not being a true reflection of their wishes. A person may be coerced or bullied into making certain provisions in their Will. It can be very difficult to prove the necessary level of coercion has taken place, but it remains a way to contest a Will where it is feared that the person making it was subject to pressures meaning they were not freely expressing their wishes.
Fraud or Error
This type of challenge deals with situations where the Will does not reflect the real intentions of the maker of the Will. It may be that the maker of the Will was not aware they were making a Will or did not approve the contents of it. A Fraud may occur if a Will is forged or the contents altered after signature.
More commonly, the challenge will be that the resulting Will is not based on the instructions provided to whoever drafted it, usually a lawyer. It may be that there was some misunderstanding or miscommunication or that some other form of error in the drafting is made meaning the makers wishes are not properly stated in the actual document.
In either case an application to a Court will be needed to try and challenge the Will which needs to be supported by evidence and is not a course of action to be undertaken lightly.
Missing Out
A Will can be contested by the bringing of a claim by a person who feels they should have benefited from the estate, but have not been provided for. The Inheritance (Provision for Family and Dependants) Act 1975 provides a mechanism for contesting a Will by persons with a close relationship or family tie to the deceased. A claim can be made by a spouse or civil partner, former spouses/civil partners who have not remarried/formed a new civil partnership, persons in a relationship with the deceased in the two years prior to death, children or those treated as children of the deceased or anyone being financially maintained by the deceased.
Other challenges can be made by persons who have relied to their detriment (usually meaning they have suffered some financial loss or disadvantage), on promises made by the deceased which are not honoured in the Will. A Will can be contested where a person can show that during their lifetime, the deceased led them to believe they would be provided for and as a result they have made decisions to their financial disadvantage as a result of that expectation.
Court may be required to contest a Will
While there are a number of ways to contest a Will, most involve complicated legal issues and will require court proceedings. To avoid becoming involved in costly and time consuming disputes, taking professional advice as soon as possible will help determine if a challenge might succeed.
