How to contest a Will
The rules surrounding Wills, estate and probate are complicated. It can be particularly challenging when you want to contest a Will.
If you suspect that a Will is not what the deceased would have wanted, you have several grounds to contest the Will. Once you know what you can challenge the Will on, you should act quickly and get obtain legal advice in order to identify the best course of action.
There are several grounds for contesting a Will. They are:
Lack of testamentary capacity
The general rule for testamentary capacity was established in Banks v Goodfellow (1870). The ruling set out that a person must understand the nature of making a Will and its effects, understand the extent and value of the property being distributed after death and that they are of sound mind.
Undue influence
Undue influence is when the deceased is coerced into agreeing to certain terms in their Will.
It can be difficult to prove undue influence as there is no presumption that because someone in a position of trust receives a gift of assets from another person that any undue influence took place.
Factors such as last minute or unexpected changes to a Will or the Will including different wishes to those they’ve expressed before could be signs of undue influence.
Lack of knowledge and approval
The deceased may not have properly understood the contents of the Will. Even if they had the mental capacity to understand the Will they were making, they may have had learning difficulties, been visually impaired, had difficulty hearing, were frail or particularly vulnerable at the time the Will was written.
You may also feel as though the deceased has been manipulated or pressured into leaving money to a certain beneficiary. You’ll need to provide evidence of this before contesting a Will in the UK.
Lack of valid execution
There are stringent requirements for a Will to be legally valid and if these have not been adhered to, it may be possible to contest it.
For a Will to be valid, it must be in writing and signed by the testator or someone else in their presence and under their direction. It must also appear that the testator intended to give effect to the Will by signing it.
The signature will only be legally valid if it was done in the presence of two witnesses, who must both sign the document.
Forgery and fraud
You might be suspicious that a Will is forged or otherwise fraudulent. Despite being among the most serious reasons to contest a Will, they are difficult to prove.
In the case of forgery, you will likely have to rely on a handwriting expert’s opinion. They will probably need to see a range of samples of the deceased’s writing and signatures to be able to reach a conclusion.
Fraud is often compared to undue influence. The main difference is that undue influence involves a degree of coercion, but fraud does not.
Clerical error
Formally known as rectification and construction (as an error requires rectifying), clerical error is when the person preparing the Will made a mistake. You might also believe that the person preparing the Will misunderstood what the testator told them, meaning it doesn’t accurately reflect their wishes.
Equally, the testator’s wishes might not be clearly written in the Will. You might, for example, believe they struggled to understand legal terms so the Will has been incorrectly transcribed.