Grounds for contesting a Will

There are many ways to contest a Will – known as ‘grounds’ for contesting a Will. Common reasons to challenge a Will include proving that it is invalid, or that the Will did not made adequate provision for dependants.

How can I contest a Will?

To contest a Will you may need to prove that it is invalid. If there was a problem with how the Will was created or drawn up, it might be invalid. 

You may also be able to challenge a Will if you feel it makes insufficient provision for you. This type of claim can be referred to as an Inheritance Act claim. The Will does not have to be invalid in order to make this type of claim.

A solicitor can help you contest a Will. It’s a good idea to take legal advice early on because your solicitor can tell you if you have a realistic claim and the best way to move forward. Your solicitor will also make sure you follow all the correct procedures.

Common reasons for challenging a Will

There are a range of potential reasons to challenge a Will. Some of the common reasons include:

Challenging an invalid Will

You can challenge a Will if it wasn’t drawn up correctly and there is a mistake. Mistakes in Wills normally involve issues with signatures, witnesses and terminology within the Will itself.  A valid Will should be signed by the person making the Will (this person is called the ‘testator’). Their signature should be witnessed by two people.  You might be able to challenge the Will if:

  • It wasn’t signed by the testator
  • The testator’s signature wasn’t witnessed by two people present at the same time as when the testator signed it
  • The people who witnessed the signature didn’t meet the requirements for doing so (there are strict rules about who can witness the signature on a Will).

Challenging a Will as a spouse, civil partner or dependent

You might be able to challenge a Will if it does not make ‘reasonable’ financial provision for you. Normally, this only applies if you are a spouse/civil partner or dependent of the deceased or one of the other eligible categories of claimants under the Inheritance (Provision for Family and Dependents) Act 1975.This type of claim is usually made by spouses, civil partners and close family members of the deceased as (in normal circumstances) these are the people most likely to benefit from the estate.

Spouses, civil partners and dependants might be able to challenge a Will if they were:

  • Left out of the Will (not mentioned at all in the Will)
  • Not left as much as they need or expected to receive
  • Alternatively, if the deceased passed away without a Will (‘intestate’).

Challenging a Will where there is a lack of capacity

The Will might be invalid if the testator didn’t fully understand or know about the contents of their Will, or those to whom they ought to have regard or the approximate extent of their estate. You might be able to challenge a Will if you think that the testator was not of ‘sound mind’ when they made it. The legal term for this is ‘lack of testamentary capacity’. To make a valid Will, the testator needs to:

  • Understand they were making a Will and the significance of doing so
  • Know the rough value of their estate
  • Understand the effect their Will would have
  • In addition, they should not be suffering from any mental conditions which might affect their ability to make important decisions. 

Challenging a Will on the grounds of undue influence

Although more difficult you may be able to challenge the Will if you think that someone has coerced the testator into making the will. This is called ‘undue influence’. It means that the testator wasn’t able to exercise their own judgement when creating the Will. It can happen if someone in a position of trust uses their position to excessively pressurise, coerce or force the testator to leave their assets in a certain way.  To prove there was undue influence, you’d need to show that there was no other reasonable theory to explain the terms of the Will.

Challenging a fraudulent or forged Will

If a Will is forged or some type of fraud took place during its creation, then it can be declared invalid. You may be able to contest a Will if, for example, the testators signature was forged.

Can an executor challenge a Will?

Yes, an executor/executrix can challenge a Will – but, to do so, they normally need to step down from their role in administering the estate. 

This is because the role of the executor is to carry out the deceased’s wishes and defend the Will. Understandably, challenging the Will makes it impossible for the executor to perform their duties in this regard. Therefore, it is not possible to contest a Will and remain executor/executrix of the estate. 

When can I contest a Will?

To make a claim under the Inheritance Act, you have 6 months to make a claim once the Grant of Probate is granted. There is no time limit if you are making a claim on the grounds of fraud or forgery.

What happens I am successful in challenging a Will? 

When a Will is declared invalid it is normally replaced by the next valid Will. If there is no valid Will, intestacy rules will apply. If you made a claim under the Inheritance Act the court may change how the deceased’s assets are distributed (and go against the terms of the Will).

Inheritance disputes claims and challenging a Will

We know that disputes over wills, trusts and inheritance need to be handled with sensitivity. At Tees, we handle all inheritance disputes with the utmost care and sensitivity to potential family issues. We’re here to help you move forward, and secure the best possible result in your situation.

Call our specialist Inheritance Disputes solicitors on 0800 013 1165 for an initial chat, at no obligation, or fill out our enquiry form and a solicitor will get in touch.
 

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