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Contesting Validity of Wills
When a person makes a will, they set out how their estate is to be distributed on their death and who is to be responsible for carrying out that process. However where there are concerns regarding the circumstances in which a will was created, it is possible to challenge the will.
The solicitors at JMW can advise on contesting the validity of a will and can help you bring or defend an action. We are experienced in handling difficult, emotionally charged matters and will aim to resolve matters with as little stress to you as possible.To speak to a member of the team, get in touch with us today. You can contact us by calling 0345 872 6666 or request a callback by filling in our online enquiry form.
Where a challenge is made regarding the validity of a will, this can cause a significant delay in administering an estate and can lead to an estate being left in limbo. In this situation, it is crucial to obtain legal advice not only to allow the administration of the estate to proceed, but also to preserve the assets of the estate for the benefit of all the beneficiaries.
A person making a will must have what is known as ‘testamentary capacity’. The case of Banks v Goodfellow (1870) sets out the test for capacity to make a will. In order to validly execute a will, a testator, i.e. the person making a will, must:
- Understand the nature of making a will and its effect
- Understand the extent of the property of which they are disposing
- Be able to comprehend and appreciate the claims to which they ought to give effect
- Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of the property by a will
The above test is a matter of interpretation and where a person has a condition such as dementia or Alzheimer’s disease, this will not always mean that they are unable to meet the above criteria.
However, we are seeing an increasing number of successful challenges to wills where individuals suffer from conditions that may affect their ability to meet the above requirements for a testator to make a valid will.
We would strongly advise that anyone with a diagnosis of dementia or Alzheimer’s, or any other condition that may impair their ability to provide instructions for the distribution of their estate, should make their will with the assistance of a solicitor. Our Wills, Trusts and Estate Planning team would be able to assist with this.
A testator may be able to say who they want their assets to go to, but not be able to recognise the significance of such a gift in the context of the value of their estate. For example, a person may make gift of £20,000 to a friend and the rest to their children but not recognise that their estate is only worth £25,000 and that by making this gift they are giving away 80% of their estate.
Alternatively, a testator may have forgotten to include certain friends or family members in their will or forgotten to include a reference to something they had promised to someone. For more information on these subjects, visit our Inheritance Act Disputes (Left Out of a Will) and Promise Not Honoured in a Will pages.
Where there is suspicion over the role another person has played in a person putting in place a will, a challenge can be brought as to the validity of the will. An older person or somebody considered vulnerable are most likely to be at risk of undue influence.
Examples of where suspicions may arise include:
- the deceased’s final will differs significantly from a previous will, or a previous pattern of will making
- a person who may expect to inherit, such as a son or daughter, has not been included in a will or has received a reduced share of the deceased’s estate
- a person unknown to the deceased’s family receives a large interest in the deceased’s estate
It is also not uncommon to find that a testator’s instructions in preparing a will have been affected when a party has exerted a dominance over the deceased during their lifetime or has isolated them from friends and family.
A testator may sign a will without understanding the contents or they may understand some elements of a will but not grasp all of the contents. An example may be that a testator could understand and make a basic will but not understand a more complex will incorporating a trust. Here a will could be challenged on the basis that the testator lacked knowledge of the contents or was unable to provide their approval of the contents.
Alternatively, the testator may not have read the contents of a will before signing or, where the document is not in their first language, it may not have been translated to them adequately or accurately and has been signed on the assumption that they agreed and approved the contents. This will also give rise to a possible claim to be brought on the basis of lack of knowledge and approval.
We act in matters where a will appears to contain the last wishes of the testator but there are questions over the circumstances surrounding the creation of the will and whether the will has been signed by another person pretending to be the testator or materially altered.
The starting position of the court in such matters is that such a document is a valid will and so it will be for the person bringing the claim to prove to the contrary. This type of claim will usually be a matter in which you will need not only expert legal advice, but require expert evidence from a calligrapher or a handwriting analysis expert.
Is there a register for wills I can search?
There is currently no national register for wills, although some law firms do sign up to voluntary databases and wills can be traced through this.
Where a person passes away and you think that a Grant of Representation has been applied for you can search the government’s ‘find a will’ database to check this and obtain a copy of the Grant of Representation and, if available, a will for the deceased.
The website is: https://www.gov.uk/search-will-probate
Who can contest a will?
A person who was financially dependent upon the deceased, a beneficiary under an earlier will or under the intestacy rules, or somebody who was made a promise by the deceased and relied on it to their detriment can all contest a will.
How do I challenge a will?
You will need to establish the grounds on which you seek to challenge the will, and information you need to bring a claim will vary depending on the type of claim you wish to bring.
For example, in cases where it is claimed that the testator lacked capacity, or was subject to undue influence, and the will was prepared by a solicitor, it may be necessary to apply to the solicitors to ask for details of the circumstances in which they prepared the will.
Other documents, such as medical records or care records, may assist in building a picture of the circumstances surrounding the preparation of the will.
Will I need to go to court?
If the matter cannot be settled prior to a final Hearing then you may need to attend court. However, the vast majority of claims do settle before a final Hearing.
Will I be liable for costs?
Why Choose JMW?
Contesting a will can be a stressful time, our solicitors will ensure the process is as simple and clear as possible for you. We will also do our best to keep the dispute out of court where possible using alternative dispute resolution (ADR).