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Contesting a Will
As people are living longer, often experiencing the frailties of old age, more and more Wills are being challenged. We deal with a wide variety of claims, not just those made under the Inheritance (Provision for Family and Dependants) Act 1975.
Before contesting a Will, it is advisable to consider what the position will be if you succeed. If, for example, there is a previous valid Will which does not benefit you, then there is no point in challenging the last Will. Similarly, if a successful challenge would lead to an intestacy, will you benefit under the intestacy rules?
The validity of the Will can be challenged on the following grounds:
Lack of capacity
This is the most common basis of any challenge to a Will, based on a four-point test.
The testator (the person making the Will) must:
- Understand that they are making the Will and know what it was for and its effect.
- Have a reasonable understanding of the assets they are leaving – the degree of knowledge required varies depending on the facts of each case.
- Be aware of who they would usually be expected to leave his estate to, e.g. spouse, children.
- Show that they are not suffering from an illness or disease which meant they left assets to people who would not otherwise have benefited, had they not been suffering from that illness or disease.
A testator may suffer from illnesses brought on by old age, such as dementia, which could be used as a basis to challenge the validity of the Will. However, by itself, a diagnosis of dementia does not mean a Will is automatically invalid. The test is whether, as a result of the illness, the testator fails one or more of the tests, as set out above. There are plenty of cases where testators have been found to have been suffering from dementia but still to have been able to give satisfactory instructions for a valid Will.
This is a complex and expanding area and challenges against Wills to prevent them being admitted to Probate are being brought and settled on this test every day. For more advice on your circumstances, please do not hesitate to contact us.
Lack of testamentary intention
When is a Will not a Will? Sometimes, particularly if the Will has not been prepared by a Solicitor, there may be doubt as to whether the document was intended to operate as a Will and you may be able to challenge it successfully.
In addition, the question may arise as to whether there was an intention to incorporate other documents which, if incorporated, will themselves form part of the Will.
There are also some Wills which only operate on a condition being satisfied.
A failure to follow correct procedure (Lack of due execution)
In almost all cases, certain requirements must be met for a Will to be valid. It must be:
- In writing, signed by the testator or by some other person in the testator’s presence and by their direction;
- It must appear that the testator intended, by their signature, to give effect to the Will;
- The signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
- Each witness must either attest and sign the Will or acknowledge the signature in the presence of the testator but not necessarily in the presence of any other witness.
If any of these elements are not present or there is doubt, then the Will may be challenged. However, everything is to be presumed to have been done properly and, accordingly, the burden is strongly on those attempting to challenge the Will.
Knowledge and approval
Anyone seeking to obtain a Grant of Probate is obliged to satisfy the Court that the Will put forward is the last Will of a free and capable testator.
Usually, if a testator had capacity and the Will was duly executed, a Court will assume the testator to have known and approved its contents. However, where knowledge and approval are disputed by those challenging the Will, the Court must be satisfied on the evidence that the testator did know and approve its contents. There may be a host of circumstances which may throw doubt on whether or not a testator knew and approved their Will. One such circumstance is if someone writes or prepares a Will under which he takes a benefit. Such circumstances are more likely to arouse the Court’s suspicion that the testator did not know and approve the contents of the Will and that suspicion will have to be removed.
Fraud and forgery
These are two ways, often linked, of challenging a Will. Fraud involves dishonesty and is judged objectively on what a person knew at the time. For example, if a person knowingly appropriates another person’s property they will be found dishonest and the challenge will be successful, even if they honestly see nothing wrong with such behaviour.
A dishonest misrepresentation made to the person making a Will (testator) is the most common form of probate fraud, influencing them to make or revoke a gift to someone. Another example is someone who the testator does not know preparing a Will in their own favour.
Challenging a Will through an allegation of forgery usually will require expert handwriting evidence and the standard of proof is high.
Often, if there is evidence of undue influence then there will not be a need to prove it because lack of knowledge and approval will be easier to establish.
In probate cases, where you are challenging a Will, you must demonstrate actual undue influence. Unlike in many other legal areas, undue influence is not presumed and the burden of proving undue influence is on the person alleging it. It is not enough to show that the facts are consistent with undue influence having been applied. Instead, it must be shown that the facts are inconsistent with any other explanation.
A testator can be led but not driven – their Will must be an expression of their wishes alone. Accordingly, it is very unusual to pursue a challenge to a Will based solely on undue influence.
If a Will is successfully challenged on any of these grounds, it will not be admitted to probate.
Our dedicated and experienced contentious probate team can provide you with expert advice on the options to challenge or respond to a challenge against a Will or estate. To discuss further, please contact us on 01733 888888 or by emailing firstname.lastname@example.org.
Buckles is ranked tier 2 for contentious trusts and probate by Legal 500.