Contesting a Will Solicitors

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What are the grounds for contesting a Will?

Invalid Execution and/or Lack of Knowledge and Approval

• First, a Will must be valid.  Hopefully, anyone making a Will is either aware of the correct procedures to be followed when executing it or has instructed a lawyer to ensure that this is the case.
• Importantly, this must include the Testator signing the Will whilst watched by two independent witnesses who then both sign the Will whilst watched by both the Testator and the other witness.
• Otherwise, it will quite literally not be worth the paper it is written on. The Will is invalid and can therefore be challenged.
• Sometimes, even where a valid is classed as ‘valid’ it may be that the Testator did not fully understand what he/she has written or signed, this is known as lack of knowledge and approval. This can sometimes be as simple as someone leaving more money than they have or excluding an obvious member of the family.
• If you are unsure whether it has been executed properly then do not hesitate to pick up the phone and speak to one of our Solicitors.

Lack of Mental Capacity

• Whether or not the Testator had sufficient mental capacity (known as “testamentary capacity”) to make the Will and whether he or she was free from any undue influence.
• These can be nuanced situations particularly where the Testator later did lose capacity such that it may be necessary to establish whether they had capacity on any particular day.
• They may alternatively have been suffering from delusions which can be difficult (although not impossible) to prove but devastating for someone excluded from a Will inappropriately.

Beneficiaries Who Are Excluded (Unfairly Disinherited)

• a Will can also come under attack after the Testator has died from parties who are not in the Will or from disgruntled beneficiaries who believe that they are entitled to a greater share of the estate.
• In particular, the Inheritance (Provision for Family and Dependants) Act 1975 provides that the Courts (in England and Wales) can determine whether or not sufficient provision was made in a Will for a claimant who falls within the provisions of that Act.
• This includes not only spouses, civil partners and children but also others who allege that they were dependent on the Testator. The Court has wide powers under this Act essentially to change the terms of the Will to include provision (or greater provision) for such claimants if they can persuade the Court of their need for reasonable financial provision.
• The Act also applies where there was no Will at all, and the rules of intestacy apply. Such cases need careful handling on both sides since, not only will a successful claim reduce all the other beneficiaries’ shares of the estate, but the costs involved will further reduce the estate and/or their shares.

Broken Promises

There are also occasionally instances where a Will might be challenged on the basis that the Testator had made a binding assurance to leave certain property to someone who relied upon that promise, but the Testator then changed their mind. Such claims are known as “proprietary estoppel claims” and require specialist advice.

How to contest a Will

If you believe you have the grounds to contest a Will, it’s important you get in touch with a solicitor as soon as possible, before an estate begins to be administered by the executors. If we believe you do have the grounds for a claim, the first step is to enter a caveat at the Probate Registry, which prevents the administration of the state whilst your claim is investigated. A caveat lasts for six months and can be easily renewed or cancelled as required.

You will need to provide your solicitor with:

• A copy of the Will
• Documentary evidence which supports your claim (i.e., witness statements)

Once we have informed the personal representatives of the Will of your claim, our aim would be to secure a settlement outside the courtroom as litigation can be a costly and time-consuming process. However, if litigation is unavoidable, we will prepare your claim and supporting evidence for court proceedings to protect your interests.