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Contesting a Will?

If you wish to control the distribution of your assets when you die you must make a Will. That Will must meet certain rules to be valid. If those rules are not followed, then in England or Wales you may challenge or dispute the Will. If you believe you have grounds for challenging a will get in touch for an initial consultation. The 5 common reasons a Will may be invalid and therefore contested are:

1. Lack of Valid Execution

You can contest a Will on the grounds of invalid procedure. There are many rules that apply to the Execution of a Will. The four key requirements for a Will to be valid as set out in Section 9 of the Wills Act 1837 are:-

  • a) be in writing and signed by the deceased;
  • b) appear that the deceased intended to give effect to his Will;
  • c) be signed by the deceased in the presence of two or more witnesses;
  • d) be signed by the witnesses in the presence of the Deceased.

There is no set format or layout that the Will must follow but it must follow all the above. If not, then it is likely to be held invalid.

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2. Lack of Mental Capacity To Make a Will called Testamentary Capacity

It is possible to challenge a Will on the basis that the deceased did not have the mental capacity to make the Will. For a Will to be valid the person making the Will must have the necessary mental capacity. So, the ability to make certain decisions and understand those decisions. Where a person is unable to do so, they “lack mental or testamentary capacity”. This may be due to a mental illness or because the person making the Will is under the influence of alcohol or drugs.

The case of Banks v Goodfellow outlines the law relating to mental capacity in England and Wales. For a Will to be valid the deceased must meet this four point test:-

  • a) Have capacity to understand that he or she is making a Will and that it will carry out his or her wishes on his or her death;
  • b) He/she must be able to understand the extent of the property he or she is leaving;
  • c) He/she must be aware of those who potentially could claim under their estate;
  • d) Not be suffering from a disorder of the mind which influenced his or her decision.

If you believe any of the above is untrue, then you may have a case for challenging the Will. An increase in cases of dementia has seen a corresponding rise in the number of families challenging wills on the basis of a lack of mental capacity. Often contesting a Will when the deceased suffered from Alzheimer’s disease or another form of dementia can be difficult to prove. Even if the deceased suffered from such an illness at the time of making the Will. Thus, expert evidence commenting upon the Deceased’s mental state is sometimes necessary.

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3. Lack of Knowledge and Approval of the Will

It is possible to contest a will due to lack of knowledge and approval. If the deceased was not aware of the content of the will or if there were 'suspicious circumstances'. For a Will to be valid, the person must have knowledge of and approve the contents of their will. A will can be disputed if the person did not know they were signing a Will or did not approve of its contents.

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4. Proving Undue Influence

You can contest a Will on the basis that the Deceased made the Will whilst under undue influence. For example if somebody put pressure on the Deceased to change the Will in their favour. Although proving that the Deceased received pressure to make the changes is not enough. To challenge the will we must show coercion i.e. in making the Will the free will of the deceased was overpowered. This can be difficult to do because the Deceased cannot give evidence.

Alternatives to contesting a Will >

5. Forgery (Fraud)

You can contest a Will if you believe it is forged or some sort of fraud has taken place. A Will may be fraudulent if the signature on the Will does not look like the signature of the deceased. If you believe a signature on a Will is a forgery you may be able to challenge the Will. This is a very serious allegation and can be very difficult to prove. A person’s signature may change over time and degenerate as they get older. So, it will be necessary to get expert handwriting evidence.

Alternatives to contesting a Will >