What Are the Grounds for Contesting a Will?

It’s a relatively common occurrence that a family member or beneficiary to a will is unhappy with its contents. While some may swallow their disappointment and assume they have no redress, statistics show a steady increase in the number of contentious probate cases. Challenging a will isn’t a decision to be taken lightly, not just due to the potential for family disharmony, but also because you need to have specific grounds on which to base your claim.

Challenging a will

You may have an actionable claim against someone’s estate if you can show that any of the following grounds apply.

1.     Lack of testamentary capacity

For a will to be valid, the person making it must be able to fully comprehend what they are doing. Someone is deemed to have the required mental capacity to make a valid will if they fulfil the test for determining testamentary capacity as set out in the case of Banks v Goodfellow [1869 -70] LR 5 QB 549. Namely that they:

·        Understand the nature of making a will and its consequences

·        Have an understanding of the extent of their estate

·        Know who the natural beneficiaries of the estate would be

·        Are not suffering from a medical condition that might affect their ability to fully understand the decisions they are making

A slew of recent cases demonstrates that these grounds are often invoked where the deceased had been living with Alzheimer’s disease or other forms of dementia.

2.     Lack of knowledge and approval

Where a will has been correctly executed, it’s presumed that the person making it both knows and approves of its contents. However, there are exceptions to this in certain circumstances (where the person is paralysed, deaf, blind or illiterate, for example). If this is the case, it must be proved that the person fully understood and approved the will.

If there are any suspicious circumstances surrounding the will, there could be grounds to claim lack of knowledge or approval; for example, where someone did not read through the will at the time it was made, did not take legal advice or the contents of the document significantly differ from their known intentions.

3.     Undue influence

Decisions on how they wish to distribute their estate must be made by the testator of their own free will. Attempts by another party to coerce the testator or exert control over their decision-making could render the will invalid on the grounds on undue influence. Examples might include anything from verbally badgering a vulnerable person until they give in to the pressure, all the way through to threats of physical violence.

The test is whether the testator’s own wishes were overpowered by another person – i.e. they would have made a different decision but for the actions of the other party. The onus is on the claimant to provide evidence of undue influence and the burden of proof is high. Coupled with the fact that such coercion often takes place within close personal relationships and may not be witnessed by anyone but the surviving party, it is usually quite difficult to prove undue influence.

4.     Forgery or fraud

If there are suspicions about whether the document itself is fake or the signature on the will has been forged, it might be possible to argue that the will is fraudulent. Suspicions may also arise in other circumstances, for example where:

·        the person drafting the will is a significant beneficiary

·        someone who is expected to inherit is suddenly excluded

·        the bulk of the estate is left to someone outside the family

·        it is the latest of a number of wills

As with a claim of undue influence, the burden of proof in fraud and forgery is high and therefore more difficult to prove.

5.     Rectification

If the person drafting the will made a clerical error or failed to understand the intentions of the testator and this had an adverse impact, the courts could be asked to rectify the will. In doing so, the courts refer to any notes taken by the draftsperson during the will-making process to help them determine the testator’s true intentions. The court will then distribute the estate in accordance with their findings.

In the event that a will is declared invalid on any of the above grounds, the courts will look to any previous wills. If no previous will exists, the person will be deemed to have died intestate, leaving the estate to be distributed under the rules of intestacy.

Making your own inheritance claim

The law imposes some tight timescales when contesting a will, so it pays to act as soon as possible. Whether you’re unsure if your claim would meet the grounds described above, or you believe you meet the criteria and would like to pursue a claim, our experienced solicitors can give you the professional advice you need. Our expertise in probate law coupled with an excellent reputation for resolution through mediation, mean we’re well-placed to make the process as amicable and expedient as possible.

Equally, if you want to avoid conflict and make sure that your loved ones are adequately provided for after your death, our solicitors can help you properly draft a new will or amend your existing document.

For any wills and probate matters, please contact our specialist solicitors at your local Rowberry Morris office.