Written by Yulia Barnes
Contesting a will is a sensitive and complex matter that can arise in the aftermath of someone dying.
While the deceased’s will is intended to reflect their final wishes regarding the distribution of their assets, there are circumstances where interested parties may seek to challenge its validity.
Therefore, understanding the legal grounds for contesting a will is essential for those navigating this potentially contentious process.
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 what the grounds for contesting a will are.
Lack of valid execution
When a will is created, a number of legal formalities must be closely followed. If they are not, the will may not be considered legally valid.
These formalities include:
- The will must be in writing;
- It has to have been signed by the testator, or someone on their behalf at their request;
- The testator must have signed the will with the intent of making it binding;
- There must be two independent witnesses when the will is signed.
A claim could be put forward to challenge the terms of a will on the grounds of lack of valid execution [also known as lack of due execution] if any of these procedures were not correctly followed.
Lack of testamentary capacity
‘Testamentary capacity’ is the legal term used to describe a person’s legal and mental ability to make or alter a valid will.
Someone must have testamentary capacity in order to make or change a will. This means they must have the mental ability to understand what they are doing and the impact it will have on their estate and anyone who might inherit.
If someone makes or changes a will without testamentary capacity, it is invalid, and their estate will be administered according to their most recent valid will instead. If they had previously not made a will, their estate will be divided according to the rules of intestacy, which set out who can inherit from an estate when there is no will.
Someone may have lacked testamentary capacity at the time of creating a will if the deceased was suffering from a medical condition when they made the will and might not have had testamentary capacity at that time.
Since many people only make or change their will later in life, their capacity can be affected by conditions like memory loss, Alzheimer’s disease and dementia. However, people can lose capacity at any age due to mental illness or brain injury, and the test for capacity to execute a valid will is a legal one.
Lack of knowledge or approval
Where a person’s will has been executed correctly, there is a presumption that the testator has the required knowledge and approval of the terms of the will, as well as the required testamentary capacity.
However, there are certain circumstances where it must be proved that the testator had the required knowledge to understand the contents of their will and that they approved the content. For example, where they:
- are deaf;
- cannot write or are paralysed;
- are blind or illiterate;
- directed another person to sign the will on their behalf.
In any of the above circumstances, evidence will need to be provided to convince the court that the testator had knowledge of the will and approved its terms.
There is also a general exception to the presumption of a valid will if the circumstances surrounding the will being executed raise ‘suspicion’. In this case, it will be for the party who is arguing that the will is valid to produce evidence to counter the suspicion and/or convince the court that the testator had knowledge of the terms of their will and approved the content.
Undue influence or duress
‘Undue influence or duress’ is where the testator could have been pressured or coerced into making or changing their will.
Coercion is pressure that overwhelms the testator’s own wishes without completely changing their mind. Some examples of the tell-tale signs that a will was made under undue influence or coercion include the will being homemade with no professional advice sought. It could also include spelling mistakes, and/or language which wouldn’t have been used or understood by the testator.
You must be able to provide clear evidence that the will has been made with undue influence to make a claim. There is a difference between influence and undue influence which is described as coercion or with force.
Among other things, a court will be looking for evidence that:
- The estate has been bequeathed in an unexpected way;
- There has been a significant change made to benefit one beneficiary;
- No provisions have been made for close family members, but others who are unexpected have benefitted considerably;
- The capacity of the testator and whether they have been more susceptible to undue influence;
- Whether a solicitor was involved in the will making process and any evidence sought from people who knew the person who made the will, such as medical professionals, family members or carers on the relationship between the testator and the beneficiary.
If the court decides there was undue influence, the will becomes invalid and either an earlier will will be used or the estate will be dealt with under the intestacy rules.
Fraud or forgery
A will is also considered invalid if it can be proved that it has been forged.
When challenging a will based upon forgery, from the outset, it will often be necessary to instruct a handwriting expert to determine whether the testator’s signature is genuine.
If the handwriting expert produces a report in which their conclusions are inconclusive, it is unlikely that a claim for forgery will succeed. Even in cases where a handwriting expert has confirmed that there are good grounds to propose forgery has been committed, if there is other factual evidence to contradict this finding, a court may not find that forgery has occurred.
Therefore, at the outset, if you wish to contest a will, witness statements should be obtained from any relevant witnesses regarding the surrounding circumstances, in addition to a handwriting expert being instructed.
Final thoughts
A dispute about a will can lead to a very long, drawn out court process. This is likely to be stressful and expensive, so you should only consider a legal contest as a last resort.
If you believe contesting a will is the only option, it is best to act as quickly as possible, as there may be a strict time period for legal proceedings to be started depending on the nature of the claim.
By seeking legal advice at the earliest opportunity, you can ensure you are clear on your position and understand the likely outcome of your claim.
About the author
Yulia Barnes is founder and managing partner of Barnes Law
