Contesting a Will

A Will, when properly prepared, represents the true wishes of the testator (the person who has made the Will) as to how he wishes his assets to be distributed on his death. It is therefore important that a Will is created according to certain formalities. A Will should only be prepared at a time when the testator had the requisite mental capacity to make his own free and independent determination as to how he wishes his assets to be dealt with upon his death.

A Will is occasionally challenged when, for example, it is alleged that it has been improperly executed. This can occur if the witnesses named in the Will did not actually witness the testator signing the Will. A Will can also be challenged if the testator signed the Will at a time where he did not have the requisite mental capacity (for instance due to illness) to provide his instructions for the drafting of his Will.

Other possible challenges to the Will can arise where it is maintained that the testator was forced under duress to sign a Will which did not represent his true intentions or where such undue influence was placed on the testator that he felt that he had to sign a Will that did not represent his true intentions.

If a Will is to be challenged, it is important that prompt legal advice is obtained. If Solicitors are instructed in good time, a document known as a Caveat, can be issued which will prevent a Grant of Probate from being obtained. A Grant of Probate is necessary in order to allow the Executors to distribute the deceased’s estate.

If an executor is informed of a claim regarding the validity of the deceased’s Will and that claim is disputed by the estate, then prompt legal advice should be sought by the Executors of the estate.