Having the right to contest a Will
We appreciate that considering disputing a Will, during an already difficult time, can lead to greater uncertainty for you. You may believe you have suitable grounds for disputing the Will, whilst recognising it is a complicated area of law. The law asserts the importance of respecting the wishes of the testator (the person making the Will) – even when this is not necessarily what family and friends are expecting.
It is therefore, important to understand if you have appropriate grounds for disputing the Will. A Will can be disputed for the following reasons:
- The Will does not comply with the Wills Act 1837. For a Will to be valid it must;
- Be in writing and signed by the testator (the person making the Will);
- The testator must have intended by his signature for the Will to be valid;
- The testator’s signature must have been witnessed by two or more witnesses which were present at the same time
- The witnesses must each either attest and sign the Will or acknowledge the testator’s signature (but not necessarily in the presence of any other witnesses)
- The will fails to make reasonable financial provision for you and you are eligible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
The Court will generally consider the following:
- the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future
- the financial resources and financial needs which any other applicant for an order under the Inheritance Act has or is likely to have in the foreseeable future
- the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future
- any obligations and responsibilities which the deceased had towards any applicant for an order or towards any beneficiary of the estate
- the size and nature of the net estate of the deceased
- any physical or mental disability of any applicant or any beneficiary of the estate
- any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.
There is generally a time limit of six months from probate being issued in order to contest the financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.
- The deceased was coerced into making the Will (called undue influence). This relates to a third-party applying pressure on the deceased. The law states this pressure could take the form of “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.” A key factor in determining whether there has been undue influence is whether the coercion is such that it overpowered the will of the testator.
- The deceased did not have capacity to make a Will. This could apply if you believe the testator was not able to;
- 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”.
It is worth noting that there is a presumption that the testator has/had mental capacity if the Will appears to be rational and contains no irregularities.
- The deceased did not have knowledge and approval of the Will. This means that the individual making the Will did not understand he or she was making a Will and the effects of the distribution set out in the Will.
There is a presumption that the testator has/had mental capacity if the Will appears to be rational and contains no irregularities. If the Will has been executed properly and the testator had capacity, it is presumed the testator had knowledge and approval. However, 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.
- The Will is a 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.
- The Will fails to give effect to the deceased’s wishes (called Rectification). This is typically a means to contest a Will when either a clerical error or the individual (professional) writing the Will failed to understand the instructions of the testator.
The evidence required to pursue such a claim will be a copy of the Will preparation file as well as the solicitor or Will writer’s comments as to whether the Will aligns with the testator’s wishes
A claim for rectification must be made within 6 months from the date the Grant of Probate was issued. A claim brought outside of this time can only be permitted in limited circumstances and will require permission from the court.
Contesting a Will within timescales
Aside from a claim under the Inheritance (Provision for Family and Dependants) Act 1975 there is no defined time limit for bringing one of these claims in the court. However, practically, once the estate of the deceased has been distributed, it is very hard to try to unpick the distribution to settle any subsequent claim. Generally speaking, executors will try to administer an estate within 12 months. Seeking early advice can mean the executors are put on notice of the claim and warned not to distribute the estate.
Equally, where the parties settle a claim and agree to distribute an estate in another way from the Will, the parties can agree a deed of variation to the Will but such a deed needs to be completed within 2 years from the date of death of the deceased.