Grounds for contesting a will

Contesting a will on grounds of mental capacity

For a will to be valid the person making the Will (the testator) must have testamentary capacity. People often refer to this as “being of sound mind”. Mental disability can give rise to mental incapacity, but if someone is mentally ill it does not necessarily follow that they will automatically lack testamentary capacity and be unable to execute a valid will.

It is becoming increasingly common for wills to be contested on grounds of mental incapacity. One very common situation is where the testator is suffering from Alzheimer’s Disease. Alzheimer’s and other age related illnesses are on the increase. As the number of people suffering from the condition grows, so does the number of contested will cases. However, the presence of Alzheimer’s or similar degenerative conditions does not automatically mean that the person lacks mental capacity and that contesting their will is likely to be plain sailing. Each case must be considered on its own facts.

In most contested will cases involving mental incapacity issues, some form of medical evidence will be required. When preparing a will for an elderly or unwell person solicitors should take the precaution of obtaining a note from a doctor or GP to confirm that the testator has testamentary capacity. This is sometimes referred to as “the golden rule”. However, the golden rule is not always followed, so when a dispute subsequently arises the parties and their lawyers have to obtain evidence of the testator’s likely state of mind when the will was executed.

If it can be proved that the testator lacked mental capacity when the will was made then it is likely that a court will declare it invalid, in which case any earlier will would be operative, or, if there is no earlier will, the intestacy rules will apply.

Contesting a will on grounds of undue influence

Allegations of undue influence are common in contested will claims.

Testators should be free to make their will in whatever way they wish. If a testator is compelled or coerced into executing a will then that will is likely to be declared invalid should the will be contested or challenged. When wills are contested on this basis, solicitors refer to it as undue influence. However, contesting a will on the basis of undue influence is not easy. The courts require clear evidence of actual coercion. It is not sufficient to merely show that the testator was put under moral pressure for instance, or that a friend or family member deliberately set out to ingratiate themselves – however cynical and distasteful that conduct might be.

If you are an executor or beneficiary facing an undue influence claim then you may wish to speak to us about defending the case. If you are looking to contest a will on the basis of undue influence and think you will be able to obtain sufficient evidence to support the allegation then give us a call.

Contesting a will on the grounds that it fails to make adequate financial provision

Unlike other countries, people in the UK are free to leave their estate to whoever they wish. However, this can result in close family members, or people who were dependent on the deceased, suffering severe financial hardship.

To remedy these iniquities, the Inheritance (Provision for Family and Dependants) Act was passed in 1975. The Act was intended to provide protection to people who had been financially dependent on the deceased where the will (or the intestacy rules) had not made adequate provision.

The Inheritance Act (or the 75 Act as lawyers sometimes call it) can assist children, spouses, co-habitees and civil partners. The IPFDA can also assist anyone who was being financially supported by the deceased, eg by living in a home which was owned by them.

Under the '75 Act dependants can ask the court to make financial provision for them, regardless of what the deceased might have said in their will or what the intestacy rules state.

The court will take into account the needs and resources of the claimant as well as those of any beneficiaries. Other factors which the court will consider are age, the length of any marriage and the parties’ conduct.

Anyone thinking about contesting a will or intestacy by making an Inheritance Act claim will need to act fast. Very strict time limits apply and court proceedings must be commenced within six months of a grant of representation being made. If you are already out of time however, do not despair. The court does have discretion to allow late Inheritance Act claims, but it is vital to act quickly once you become aware of your right to make an inheritance claim

Contesting a will on grounds of lack of knowledge and approval

Wills can be contested on the basis that the testator did not know or approve the contents of the will. Knowledge and approval is generally presumed where the will has been properly executed and the maker of the will had full testamentary capacity. Nevertheless, there are certain circumstances where there would be cause to believe that the testator did not know and approve the contents of the will. Contested will claims can arise for example where a beneficiary has taken an active role in the preparation of the will and there are concerns that the testator did not have the required level of knowledge and approval of the terms of the will he executed.

Contesting a will on grounds of invalid procedure

Procedural irregularity is an allegation often made by people when contesting wills. A will is not valid if it fails to comply with the requirements of the Wills Act 1837. The law is very fussy about these formalities and if they are not followed then, with few exceptions, the will can be successfully challenged. Under the Wills Act the will must be in writing, it must be signed and it must be witnessed by two independent witnesses. We have seen an increasing number of challenges being made where wills have been home made. Complying with the formalities of the Wills Act can be a minefield for the unwary and an experienced eye will often spot mistakes and errors that could lead to the will being declared invalid. The legal profession has also noted a growing number of people challenging wills that have been prepared by unqualified will writers.

Contesting a will on grounds of fraud

Fraud is unfortunately an increasing problem and wills can be successfully contested where there is evidence that the testator has been tricked into executing a will. If you encounter a will that you think may be fraudulent and wish to contest it then we suggest you utilise our popular FREE case assessment service. Simply provide us with details of the basis on which you would like to contest the will and we will provide you with out initial thoughts of the merits of such a claim.