Over the series of the few weeks, Walker Foster shall be releasing a bite sized blog each Monday that seeks to answer some of the most commonly asked questions our litigation department are asked to advise upon in a contested Will case.

Contesting and defending the validity of a Will is a specialist area of law referred to by lawyers as ‘contentious probate’. Contentious probate claims should not be confused with claims made pursuant to The Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”).

Claims under the Inheritance Act are based on the Deceased’s final Will being valid, where eligible Claimants under the Inheritance Act put forward that:

1. although financial provision was made to the Claimant in the Deceased’s Will, the provision made was not reasonable; or
2. no financial provision was made for the Claimant by the Deceased at all the Claimant feels reasonable provision should be made.

Alternatively, it may be that the Deceased died intestate and the Claimant may contend that:

1. although by virtue of the intestacy rules, financial provision from the Deceased’s Estate is made to the Claimant, that provision is not reasonable; or
2. no financial provision is made to the Claimant by virtue of the intestacy rules and the Claimant feels provision should be made for them.

In this blog, we shall consider when a person may seek to contest a Will and we shall consider what the main legal grounds are to do so.

Why might I seek to contest a Will and what makes me able to do so?

Generally, a Deceased’s Will should represent their final wishes as to who benefits from their property and assets. If you do not think a Will represents the Deceased’s final wishes, you may wish to challenge its validity. Before considering the legal grounds on which you may be able to do so, you first need to be able to show that but for the Will you wish to contest, you would benefit from the Deceased’s Estate under their previous Will or, you would benefit from their Estate pursuant to the rules of intestacy.

What are the main legal grounds to contest the validity of a Will?

There are various grounds which can be asserted to contend that a Will is invalid. Some are more common than others and it is often common for a Claimant, to assert a combination of the grounds, rather than solely contending one of them. The main legal grounds to contest a Will are discussed below.

Execution of the Will

Whilst not a requirement, it is good practice for a solicitor who specialises in Will preparation to attend the person making the Will, take their instructions on what they would and would not like to be included, to prepare the Will thereafter and to be in attendance when the Will is signed, with one other witness in attendance.

If this has been done, it is likely that the Will is valid. If the Will was not prepared by a solicitor, this will likely raise suspicion as to the Will’s validity. If the Will has not been signed by the Deceased or it has, but it has not been signed by two witnesses who are independent (aged 18 or over and not a family member of the Deceased) the Will shall be invalid.

Lack of Testamentary Capacity 

The person making the Will (the testator) must have testamentary capacity at the time he or she made the Will. This means a person must be of sound mind and must be able to make rational decisions.

They must know the extent of the property and assets that they own and they must be able to understand the consequences that the making of their Will will have. If there are concerns with regard to these matters, at the time the Deceased made their Will, one can seek to challenge a Will alleging that the Deceased lacked testamentary capacity.

Whether or not the Deceased had or lacked testamentary capacity, often falls on expert medical evidence.

Lack of Knowledge and Approval

This ground often goes hand in hand with the lack of testamentary capacity ground. The Deceased must have known and approved the contents of their Will.

If there is an allegation and evidence that that they did not do so, the Will’s validity can be challenged on this basis.

Undue Influence

This ground seeks to show that the Deceased was coerced or pressured by one or more people to change their Will in a manner that does not represent their true final wishes.

This ground may be put forward where the Deceased had testamentary capacity but, it is alleged they were pressured to change their Will so much so, that they succumbed to such pressure and made changes to their Will in a manner that does not represent their true testamentary wishes.

In our next blog, we shall consider some other legal grounds to contest the validity of a Will and also some factual examples that would support one being able to contest a Will.

Disclaimer

The information contained in this blog is for information purposes only. It by no means seeks to be exhaustive. It seeks to be a brief guide as to the circumstances in which one may seek to contest a Will. Walker Foster cannot accept any liability for any steps taken by someone who has read this Guide, acted upon it and that they feel results in loss to them. Specialist, case specific advice should be obtained before pursuing a claim to contest a Will and indeed, if you find yourself needing to defend a Will validity claim.

Walker Foster are able to advise and act for a party wishing to challenge the validity of a Will, or they are able to act for and advise a party defending an interest that they have under the Will that someone else is seeking to invalidate. Our lawyers are knowledgeable, experienced and passionate about assisting their clients in contentious probate matters. We seek to assist our clients in settling claims as quickly and cost effectively as possible and we have decades of experience of doing so.

Please contact us at litigation@walkerfoster.com / 01756 700200 to make an appointment with one of our specialist lawyers if you require assistance in relation to a contested Will matter or claim pursuant to the Inheritance Act. We can also assist with the removal of the Executors of an Estate. Meet the team here:

Mr Luca Angarano, Chartered Legal Executive