Every Will is different and no two disputes are the same. However, any challenge to an estate will usually fall into one of five categories.
Here we outline the common grounds for contesting a Will and other questions you might have about the process:
We’ll talk you through your options, and whether or not we think we can help. Call us today on 0345 604 4895 or fill out our online enquiry form and we’ll call you back.
Grounds For Contesting A Will
Lack of testamentary capacity
If someone did not have the mental capacity to make a Will, this is called lack of testamentary capacity.
Anyone who makes a Will must:
- Understand that they are making a Will
- Understand that the Will sets out how their estate will be divided after they die
- Be aware of the value of that estate and understand the assets
- Know who may have a claim on their estate (beneficiaries)
- Not be suffering from a mental illness which affects their ability to make decisions about how their estate should be divided.
To make a valid Will a person must be of sound mind and understand the effect of what they are doing. Towards the end of life a person may begin to lose their mental capacity, and it’s important that they don’t make changes to their Will or draft a new Will at this time without a capacity assessment having been carried out.
To find out more visit our page on testamentary capacity.
Lack of valid execution
When a Will is drawn up without the proper legal requirements in place this is called a lack of valid execution.
A Will isn’t valid unless:
- It’s in writing
- It’s signed by the person making the Will (called the testator, or testatrix if it is a woman), or by someone on their behalf at their request
- There are two witnesses present at the signing
- The testator signed the Will with the intent of making it official.
The solicitor or Will writer is responsible for making sure a Will is executed properly to make it valid. In addition to making a claim on the estate for an invalid Will, it may be possible to bring a claim for professional negligence if this is the case.
Lack of knowledge and approval
If the person making the Will wasn’t aware of its contents, this is called lack of knowledge and approval. There may be suspicious circumstances, such as a large gift to the person who helped them prepare the Will.
This is different to a lack of testamentary capacity, as the person may have had the mental ability to make a Will, they just weren’t aware of the full extent of its contents.
Undue influence
When someone pressures or coerces the testator to write a Will or change an existing one, this is called undue influence.
For a successful challenge on these grounds, you must show ‘actual undue influence’. This means you must show that certain assets or parts of the estate were given to someone as a direct result of them manipulating or taking advantage of the person making the Will.
The Court requires a high standard of evidence for claims of undue influence and you’ll need to prove there is no other reasonable explanation for the terms of the Will.
Find out more about making a claim for Undue Influence.
Fraud or forgery
If a Will has been forged or is the result of fraud, it will be invalid. Examples of this would be:
- Forgery – a person fakes a Will in someone’s name and forges their signature
- Fraud – someone uses false information about another beneficiary to make the testator cut them out of the Will.
Visit our page on Forged Wills for more information.
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Can You Contest A Will Before The Person Has Died?
No, because they may choose to change their Will before they die. If you are worried about the terms of a Will or the circumstances in which it was drawn up, you must talk to the testator/ testatrix while they are still alive.
This may not be the case for a Statutory Will that has been drawn up for a person who has lost mental capacity. If you disagree with the terms of the Will you might want to challenge it while they are alive. Head to our Statutory Will Disputes page to find out how we can help you make amendments to a Statutory Will or challenge a financial deputy.
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Can You Contest A Will After Probate?
Yes – while it’s always best to make a claim as soon as possible, you can contest a Will even if probate has already been granted. If this was the case we would notify the other party (usually the executor and other beneficiaries) that validity of the Will was being contested.
This may prevent or delay the estate from being administered until the dispute is resolved. We’ll try to give you a clear idea at the start of how long we think it will take, and what to expect.
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What If There Is A ‘No Contest’ Clause?
Sometimes a person making a Will or setting up a trust may include a ‘no contest’ clause to prevent it being challenged after they die. These clauses are usually specific to a certain asset or person – if they think someone might make a claim for something they don’t want them to have, they might include a no contest clause to pre-empt that.
It’s still possible to challenge a Will that has a no contest clause. If the Will is found to be invalid, the no contest clause will not apply.
However, if the challenge is unsuccessful, the no contest clause would still be valid. If you already had a stake in the estate and you make an unsuccessful claim, you may lose your part of the estate, depending on the terms of the clause.
We’ll be able to advise you on the best course of action when we discuss your case with you. Call us today on 0345 604 4895 or fill out our online form and we’ll call you back.
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Who Can Contest A Will?
Anyone can contest a Will if they’re worried it might be invalid. This is usually someone with an interest in the estate – if you were expecting to inherit and didn’t, or if you were expecting to inherit more, or haven’t been left enough.
Every case is different, and we’ll be able to discuss with you whether or not we think you can make a successful claim.
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Who Will My Claim Be Against?
This depends on the type of claim. If you’re challenging the validity of the Will or making a claim under the Inheritance Act, your claim would be against the executors of the estate and the beneficiaries.
Likewise, if a person had died without leaving a Will, your claim would be against the beneficiaries who had inherited under the rules of intestacy.
However, if you’re making a professional negligence claim because the Will was drawn up incorrectly, this would be against the solicitor who dealt with this.
We’ll be able to advise you on what type of claim to make and who this will be against. Call today on 0345 604 4895 or fill out our online form and we’ll call you back.
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