Reviewing the documents of a loved one who has recently passed away can be an emotional and daunting task, especially if there are concerns about how a Will was made, or someone feels as though it does not accurately reflect the deceased’s wishes. These scenarios are not uncommon, and in the UK, the number of people contesting a Will has been steadily increasing.
There are many reasons why family members or loved ones may contest a Will, but before pursuing this type of claim, there are some key elements that should be addressed. In this blog, our contentious probate team looks at the grounds for contesting a Will and the legal options available.
On What Grounds Can You Challenge a Will?
In the UK, you are generally allowed to choose who benefits from your estate (the beneficiaries) and who manages it (the executors). Therefore, simply not agreeing with the Will is not a strong enough argument on its own. Only certain people are allowed to contest a Will, and they must have a valid reason to do so. The reasons a Will can be contested include:
- Lack of valid execution:
For a Will to be legally valid under the Wills Act 1837, the person making that Will (the testator) must be over 18, have made it voluntarily, be of sound mind, and make it in writing. The Will must also be signed in the presence of two witnesses, both over 18, and the witnesses must sign it in the testator’s presence. If you believe there is a lack of valid execution, this is a ground on which you can dispute a Will.
- Lack of testamentary capacity:
Testamentary capacity refers to the mental and legal ability (being of sound mind) of the testator (the person making the Will) to make or alter a valid Will. If the testator lacked testamentary capacity at the time of executing the Will, then the Will can be challenged for being invalid.
- Undue influence or coercion:
A Will must be made voluntarily and without coercion. Undue influence is where someone was forced, manipulated, or pressured into making or changing the contents of the Will, usually so that it benefits the person who is engaging in the coercion. You could dispute the contents of the Will if you have evidence of this.
- Lack of knowledge and approval:
Where there is evidence that the person who made the Will did not understand or approve its contents or had a lack of understanding of what they were signing, then this would present grounds for contesting a Will.
- Fraudulent circumstances:
A Will may be challenged if it contains false information, was faked, was made without the knowledge of the deceased, or includes a forged signature, as this would be considered a forged Will. There are also limited grounds for challenging a Will if you believe the testator made decisions about their Will based upon false information given to them about a beneficiary.
- Rectification or professional negligence:
Rectification is when there has been a mistake in documenting the wishes of the deceased due to a clerical error or failure on the part of the person drafting the Will. Errors might include typos, wrong names, omissions, or misunderstandings of instructions. When calling on rectification as your grounds for contesting a Will, looking over the Will writer’s or solicitor’s notes leading up to the drafting of the Will is crucial to ensure there is sufficient evidence to support rectification and to reflect the deceased’s wishes. Challenging a Will based upon rectification could also lead to a claim for professional negligence against the person who drafted the Will.
Certain beneficiaries who were expecting to inherit but were left out of a Will may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Children from a previous relationship may also be able to challenge a Will if everything is left to a new spouse.
- Proprietary estoppel:
If someone left you out of their Will or promised you would inherit property or assets, and you were relying on that promise to your detriment, you may have a claim to challenge a Will based on something called ‘proprietary estoppel’. Read our previous article for further information: Inheritance Claims Based on a Promise – What Is Proprietary Estoppel?
Proving whether any of these circumstances occurred can be difficult, so seeking specialist legal guidance is essential before challenging a Will. Time limits may also apply depending on the type of claim, so early legal advice is recommended. For further information, please read: ‘How to Contest a Will in the UK’.
Contentious Probate Claims
The process of challenging a Will, also known as contested probate, can be complex, lengthy, and costly. At Bowsers Solicitors, our contentious probate team will always aim to resolve your dispute using Alternative Dispute Resolution (ADR) methods, but, where needed, can provide the guidance you need to take your matter to court.
We have considerable expertise in resolving disputes relating to Wills, trusts, and estates and have represented a diverse range of clients, including beneficiaries, families, and individuals. In addition, we can assist in defending against challenges to a Will or the distribution of assets.
By obtaining early legal advice from our compassionate and knowledgeable team, you can help ensure that your loved one’s Will is administered according to their wishes.
If you are looking for contentious probate advice, please contact our experienced lawyers and chartered legal executives today on 01945 583194 (Wisbech) or 01354 652606 (March), or email reception@bowsers.co.uk.
Alternatively, you can fill in our contact form.
