Grounds for contesting a will

There are several ways in which a will can be contested. Sometimes a will challenge might be made on more than one ground. Set out below are the most common types of will claim.

Validity

The Wills Act sets out a number of specific requirements in order for a will to be valid.

For example, a will must always be in writing and signed by the person making the will.  The will must also be witnessed properly.  Particular problems can arise where home-made wills are concerned because these requirements may not be properly complied with.

Inheritance (Provision for Family and Dependants) Act 1975

The Inheritance Act (Provision for Family and Dependants) Act 1975 provided a means by which a person could seek to challenge the reasonableness of the wishes set out in the will, or the effect of intestacy and ask the court to alter the provisions appropriately.

In order to bring a successful claim, the person challenging the will needs to be able to show that they are one of the specified people entitled to bring the claim, and that the will, or intestacy rules (where there is no will), do not make reasonable financial provision for them.

How the courts interpret the Inheritance Act depends on which type of claimant is making the claim.  Spouses and civil partners can seek to recover financial provisions as would be reasonable in all the circumstances for the spouse or civil partner to receive.  All other claimants can seek to recover reasonable financial provisions for their maintenance.  This means they need to provide evidence of their income and outgoings and the court will be careful only to award that which is necessary.

Capacity

The law says that the person who makes the will must have sufficient mental capacity at the time he or she makes the will.

This is a common area of dispute where a will is changed in the latter years of someone’s life.  Often the will has been carefully prepared by a solicitor who has satisfied themselves that the person making the will does have capacity.  If there is any doubt the courts recommend that a doctor assesses the person immediately before making the will and that the doctor also witnesses the will, often with the solicitor acting as the other witness.  This is known as the golden rule.  However, the golden rule is not always followed and in cases of home-made wills the capacity of the person making the will may be properly considered.

Evidence of the capacity of the person making the will at the time will be necessary.  Sometimes this can be straightforward if the person making the will is under the care of a doctor or a specialist as a report can be obtained.  In other cases it can be much harder to prove the someone did not have sufficient capacity to make a will.

Undue influence

Where someone is pressured into making a will in a particular way by, for example, leaving a particular piece of property or money to someone, a will can challenged.  Some claims can be obvious, for example where a son living in the same house as the person making the will receives all of the person’s estate, leaving out other family members altogether.

However, some claims can be much harder to spot and require further investigation.  It is a common claim that the person closest to the person making the will influenced the making of a will which leaves an unequal share of the estate to them.  This can cause problems because the person making the will may have wanted to leave more to them to reflect the closeness of the relationship or particular help and support provided to them.  In these cases, the evidence that the rest of the family, friends or neighbours can provide can make or break a claim.

Knowledge and approval

Generally speaking, if a will is valid (see above) and it has been signed and executed properly then the law presumes the person knew what their estate comprised, what they were doing and that they approved of the will.

However, evidence which shows the person making the will did not have sufficient knowledge about what their estate comprised, or that they did not actually approve of how they were disposing of their estate can disprove that presumption.  For example, a person who had poor eye sight and needed the will being read to her, would not have known and approved of the contents of the will if they were simply asked to sign it without the will being read to them.

Fraud

Any will made as a result of a fraud will be invalid.  For example, if a person misleads someone into making a particular gift in favour of them or someone else, the will can be set aside.

Fraud claims are relatively uncommon because they require clear evidence in support of the claim and that sort of evidence can be hard to obtain, particularly as the person making the will has died.

Revocation

It is important to understand that there are circumstances in which a perfectly valid will is revoked by the law.  The following are the most common situations:

  • the marriage or civil partnership of the person who made the will revokes a will unless it was made in contemplation of that marriage or civil partnership
  • annulment or dissolution of a marriage or civil partnership
  • the discovery of a later, valid will
  • the destruction of the will by the person who made it

Effect of a successful challenge

A will which is challenged on the grounds of validity or lack of capacity is set aside entirely.  Elements of the will cannot simply be removed.  A successful Inheritance Act claim has the effect of varying the Will as the Court sees fit.  In the case of the remaining types of claims the will is often set aside entirely but, in some cases, the offending part(s) of the will can be removed and the remainder left as it is but only if the court is satisfied the rest of the will is valid.

If a will is set aside entirely, the next most recent will must be relied on unless there is some questions about its validity.  This can cause a number of problems, particularly where there is no earlier will. In this case the rules of intestacy will apply and can produce undesirable consequences.

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