Article written by Simona Morina, Solicitor, Litigation department
A Will is important as it reflects a person’s true wishes as to how and to whom they wish to benefit after they die. If you feel that a Will has been forged, the person was pressurised or did not understand what they were doing, or it simply wasn’t properly executed (signed), you may be able to contest the Will.
If the Will is valid but you feel you have been intentionally left out or treated unfairly by a family member that you depended on, you may be able to make a financial provision claim under the Inheritance (Provision for Family and Dependants) Act 1975.
In this article, we explore the commonly asked questions when it comes to contesting a Will. In any event, we would recommend that you seek legal advice from a specialist solicitor who can guide you through the process and maximise your chances of making a successful claim.
1 – Why would someone consider contesting a Will?
There are various reasons why a Will may be invalid. This could relate to fraud or forgery, undue influence, lack of testamentary capacity or that it was not properly witnessed. If you feel the Will did not correctly reflect the deceased’s wishes, you can potentially challenge its validity.
2 – Who can challenge a Will?
A person contesting a Will should have a vested interest in it. This would usually refer to a spouse, relative, cohabitee or person that is mentioned in the current (or previous) Will.
3 – Grounds for contesting a Will
A Will can be challenged if it is alleged that is has been improperly executed. This may occur if the witnesses named did not actually observe the testator signing the Will or if the testator did not have the requisite mental capacity to provide instructions for the drafting of the Will.
Other potential challenges arise when it is maintained that the testator was forced under duress to sign a Will that did not represent their true intentions.
4 – Things to look out for
a) Has the Will been properly executed?
It is not unusual for the testator and/or the witnesses to get it wrong when it comes to signing. Other factors such as clerical errors and poor drafting could also invalidate a Will. This is why we always recommend speaking to a Solicitor. If a Will is to be challenged, it is important that prompt legal advice is obtained.
b) Has the Will been altered or forged?
There are times when suspicion arises that a Will has been altered or forged in some way. A good example relates to a signature or handwriting that may appear different to that of the person who was supposed to sign it.
c) Has undue pressure been in play to make the Will?
At times, vulnerable people can be pressurised or coerced into making a Will with terms they are unhappy with. This is known as ‘undue influence’.
d) Did the person have mental capacity when making the Will?
The testator will need to be of ‘sound mind’ when making their Will, understanding what they are doing. If the person has an illness that prevents them from acting rationally which in turn casts doubts about their mental capacity, this is known as ‘lack of testamentary capacity’.
If the testator has dementia or another condition that may affect their decision-making, they would be advised to get medical evidence to say they are able to make the Will. When assessing whether the Wil can be contested, we would look at three areas as follows:
- Did the testator understand the information about the decisions to be made in their Will?
- Does the testator retain this information in their mind?
- Can the testator weigh up the information they communicated?
How do I contest a Will?
If you have grounds to contest a Will and provided you qualify, you should seek legal advice as soon as you can from a qualified lawyer. You will need to submit a claim before probate is granted.
Submitting a claim
Once your solicitor has considered your claim and advised that you are in a position to challenge a Will, the first step, if Solicitors are instructed in good time, is register a document known as a Caveat. Once issued this will prevent a Grant of Probate from being obtained.
A Grant of Probate is necessary to allow the Executors to distribute the deceased’s estate. A Caveat will usually last for six months. At times, disputes may be resolved through mediation. Where this is not possible and the parties fail to reach an agreement, the claim may need to proceed to court for determination.
If you wish to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, you have six months from the grant of probate to issue a claim at court. This timeframe is also relevant for rectification claims. In some cases, you may be able to bring a claim outside of this time period, but we would strongly suggest you speak to a Solicitor immediately.