Challenging a Will

If you are looking to challenge a Will then we can help you.

What are the reasons to challenge a Will?

You can challenge a Will because:

• The Will does not comply with the Wills Act 1837
• The deceased was coerced into making the Will (called undue influence)
• The deceased did not have capacity to make a Will
• The deceased did not have knowledge and approval of the Will.
• The Will is a forgery or fraud.
• The Will fails to give effect to the deceased’s wishes (called Rectification)

Undue Influence

A Will can be challenged if the person who made the Will was subjected to undue influence, or pressure by a third party.  The law defines pressure as coercion which may be “physical violence, verbal bullying or simply talking to a sick person who is seriously ill in such a way that the person may be induced for quietness sake to do anything.” The key factor in determining whether there has been undue influence is whether the coercion is such that it overpowered the will of the testator.

Capacity

A person making a Will must have capacity – meaning “sound mind, memory and understanding”.  The testator must:

• Understand that they are making a Will and its effects;
• Understand the extent of their estate;
• Understand claims to which he/she ought to give effect;
• Not be suffering from any “disorder of the mind” that shall “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties and that no insane delusion shall influence his Will in disposing of this property and bring about a disposal which, if the mind had been sound, would not be made”.
• There is a presumption that the testator has/had mental capacity if the Will appears to be rational and contains no irregularities.

Lack of knowledge and approval

If there are suspicious circumstances surrounding a Will, but there is not sufficient evidence to prove undue influence, the Court must be satisfied that the testator had knowledge and approval of the contents of the Will. This means that the testator understood that he or she was making a Will and the effects of the distribution set out in the Will.

The following circumstances are those in which it must be proved the testator had knowledge and approval of the content of the Will:

• If the testator is illiterate or blind; or
• The testator cannot speak or write, or is paralysed;
• If the testator is deaf and/or dumb;
• It is alleged that the testator directed another person to sign the Will on his or her behalf.

Forgery or fraud

If it is proven that a Will has been forged or the signature of the testator has been forged, this will result in the Will being declared invalid.  Fraud is defined as “an intentional deception made for personal gain or to damage another individual.”  Fraud will also lead to the Will being declared invalid.

Rectification

The law provides that “if the court is satisfied that a Will is so expressed that it fails to carry out the testator’s intentions, in consequence of a:

• Clerical error; or
• Failure to understand his intentions,

It may be ordered that the will should be rectified so as to carry out his intentions”.

A “clerical error” is defined as “an error made in the process of recording the intended words of the testator and the drafting or transcription of his will”. For example, if the testator gives instructions to leave all of his children an equal share of the estate but the solicitor did not name all of the children, this would be a clerical error.  However, if the error was because the solicitor (or will writer) did not understand the law, then it would not be a clerical error, but rather professional negligence.

Why choose Tozers?

We understand that cost is important to you so we offer a free initial consultation with any potential claim. We’ll will explain the cost options available to you and in some cases offer flexible cost options such as deferring payment, no-win-no-fee arrangements and fixed or capped fees.

We have a specialist team of contentious probate lawyers who have been bringing and defending Will dispute claims for years including complex claims involving:

• agricultural land
• forgery
• mirror and mutual wills
• apparently insolvent estates

We are accredited by the Association of Contentious Trusts and Probate Specialists.

You can trust that throughout the process, we will always keep what matters to you at the centre of everything we do.

To find out how we can help you, contact us for free on 01392 207761 or willdisputes@tozers.co.uk.