In this article Emerald Priscott, Contested Probate Solicitor, considers the two bases for contesting a Will; either the Will itself is invalid or it fails to make “reasonable financial provision” for certain people.
Is the Will valid?
The first step to consider is whether the Will is valid. There are several rules for making a valid Will and these need to be considered carefully. As experienced legal specialists in this area, we believe making a Will needs to be a priority, regardless of age. Please see our webpage for top tips to consider when making a Will.
What are the most common challenges for contesting a Will under the grounds of validity?
- The person did not have the required mental capacity when they made the Will
We call this testamentary capacity. To meet the test required for testamentary capacity, the person making the Will must fulfil certain criteria. The person must have been able to understand the following: what they were doing at the time that they made the Will, the size of their estate in broad terms and the effect of their Will. Modern advances in medicine and research have shown us that capacity can fluctuate, so a person may have capacity on one day and not the other. It is important to remember that just because someone is elderly, does not automatically mean that there may be issues about capacity. Certain conditions may affect someone’s testamentary capacity such as Alzheimer’s or Dementia. This has become a bigger issue because of the ageing population and increase in cognitive decline later in life.
- Lack of knowledge and approval
For a Will to be valid, the person making the Will must have understood and approved the contents. They may have the capacity to make the Will but not understood the nature and effect of what it says when they sign it. If the Will has been executed properly and the person had the requisite capacity, knowledge and approval is usually presumed although there are circumstances where this may be called into question.
- Undue Influence
When entering into a Will, the person making the Will should do so freely without any undue pressure being exerted upon them. Undue influence is where someone has forced someone into making a Will or including certain provisions. Sometimes people can be influenced by others to make, for example, certain gifts. Sometimes the manipulation can be prolonged and subtle, so that the person is influenced or persuaded to give money away in their lifetime or persuaded to change their Will. It may not be until the person has passed away, that it becomes clear as to what has been happening.
Undue influence can be incredibly difficult to prove. This is because you need to show that the person’s judgement and discretion had been completely overborne by the third party.
- Non-compliance with formalities
There are certain formalities which a Will needs to comply with. These are set out in law. For example, there are strict rules governing the signatures of Wills. It is not unusual for the person making the Will and their witnesses to get this wrong. Errors can lead to invalid Wills. There has been an increase in disputes in this area due to the growth of “DIY Wills”. If there are drafting errors, this could mean that the persons’ wishes are unclear, or are unable to be properly fulfilled. If the Will has been drafted professionally and the Will is invalid due to drafting errors, you may wish to consider bringing a claim for professional negligence against the solicitors or Will Writers.
- The Will is a Forgery or Fraudulent
Forged Wills are generally rare, although that is not to say that it cannot happen. Forged Wills may be made without the deceased’s knowledge, but a Will could be considered fraudulent if, for example, the signature was forged, even if the deceased created the Will. There have been cases where people have targeted those who are vulnerable, to obtain a benefit and get them to falsify a Will in their name.
This is a very serious allegation to make and should not be made lightly. There is a high evidential burden to overcome to be successful.
What are the other options? The Inheritance (Provision for Family and Dependants) Act 1975
If the Will appears to be valid, it may be possible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The act allows certain people to make a claim if reasonable financial provision has not been made for them in a Will or under the Intestacy Rules (if the deceased died without a Will). There are several factors to consider when considering this type of claim.
These types of claims need to be acted upon quickly as they are time-limited. You can only apply within 6 months of the Grant of Probate (if there is a Will) or Grants of Letters of Administration (where there is no Will), otherwise, you will need permission from the Court.
This is a very complex area of law. It is worth taking advice at an early stage to discuss what your options are. Our Steeles Contested Probate specialists offer an initial agreed fee consultation to discuss your situation and your options moving forwards. If you would like to discuss defending or contesting a Will, please call Emerald on 01603 598000 or email email@example.com.
*The information provided in this article is designed to provide useful information on the subject but does not to provide specific legal advice.