The decision to contest a Will is often not an easy one. Sometimes there is a clear reason for disputing a Will, other times something just doesn't feel quite right. There are a number of ways that a Will can be contested; please click on any of the statements below or scroll down for further information.
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The law says that certain people should be provided for after a person’s death. These include:
- Ex-husbands or ex-wives where you have not remarried
- Civil Partners
- Unmarried partners (but only where the parties have lived together for at least two years)
- Children (which can include adult children)
- Someone treated as though they were the child of a deceased (for example, fostered children or step-children)
- Anyone who was being maintained by the deceased
You may be able to make a claim if you are related to the deceased in any of the ways listed above and you have not been provided for
What issues will be considered?
If you are related to the deceased in any of the ways listed above and you have been excluded from the deceased’s Will, the courts will first look to see whether any reasons were given by the deceased for excluding you from inheriting. If the Will was prepared by a lawyer, the lawyer may be called upon to comment on any information the deceased may have given to them when the Will was prepared.
The Will-making pattern may be looked at if previous wills were made. This is where the court will examine how often Wills have been made or changed and, if the previous Wills are available, what provision those wills made for you.
Three different circumstances which often arise together are:
(1) Someone else influenced the person to make a Will, or influenced the contents of the Will
(2) A Will has been forged
(3) The person making the Will did not understand what they were doing
"I believe that undue influence was used"
If someone has influenced or coerced another person then the Will is invalid.
It must be shown that there is no other reasonable theory to explain the terms of the Will. Challenges of this type often arise where a beneficiary is present when a Will is prepared and where there is little connection between the person making the Will and the beneficiary.
"I believe that a Will has been forged"
A forged will is one where a will has been prepared by one person in the name of another, and the signature has been forged. This is a complex area and there are many circumstances where wills could be regarded as fraudulent.
"The person making the Will did not know what they were doing"
A person making a Will must have knowledge of and approve of the contents of their Will. If they did not know they were signing a Will, it is not valid.
If the person making the Will was not aware of the contents of their Will or if there were suspicious circumstances then the Will is not valid.
A valid Will requires that the maker is capable of understanding what they are doing and understand what actions it will set in motion. The maker of the Will must:
(1) Understand that they are making a Will and understand the effect of the Will
(2) Know the nature and the value of their estate (everything that they own)
(3) Understand the consequences of including and excluding certain people under their Will
(4) Not be suffering from any mental incapacity which may influence their views
If all 4 points are satisfied, then a person does have testamentary capacity.
If a person is found not to have had testamentary capacity, the Will becomes invalid.
What issues will be considered?
In cases of dementia or mental illness, medical evidence as well as from those who knew the deceased will be important. Issues can also arise when the maker of the Will is terminally ill and is taking medication which could affect their ability to understand what they are doing.
Some of the questions to be answered include whether the person knew they were making a Will, what assets they have to give, and that they understood their responsibilities to family and those close to them.
"I think that someone lacked testamentary capacity. What are the first steps you would take?"
If the Will was prepared by a lawyer then the lawyer would have to be satisfied that the person meets all four elements above before they could agree to prepare the Will.
This could be based on the lawyer’s own assessment of the person or if the lawyer was not sure that the person had testamentary capacity it is usual for the lawyer to ask for a medical report. The first step would be to ask the lawyer for a copy of their file if they still have it.
An error or mistake in a Will can cause the Executors to act differently from the way the person making the Will intended. In some cases, an error can mean that the Will is invalid.
The Will was not properly signed (or not signed at all): Lack of valid execution
A Will has been validly executed if it was signed by the testator and the signing was witnessed by two other people at the same time. The witnesses must have been over the age of 18 at the time the Will was signed.
The witnesses of the Will would usually be called upon to explain the circumstances of the execution of the Will if it is alleged that the Will was not validly executed.
If there were no witnesses, the Will is not valid.
Errors and Misunderstandings: Rectification and Construction
What is a rectification claim?
Rectifying a Will is the means of putting right a mistake that was made when the Will was prepared where the mistake has led to the Will not carrying out the intentions of the person who made the Will. This could be due to a clerical error or because the person preparing the Will acted negligently and did not understand the testator’s intentions.
What is a construction claim?
There can be disputes between Executors and beneficiaries about the meaning of the words in a Will. Where the wording in a Will is not clear, the court can be asked to determine the meaning of the words in the Will. This is known as a construction claim.
Why should I act now?
There are strict time limits for making a claim. Acting now will ensure that you receive the best advice on making a claim and the time limits.
Can I make a claim if I have been left with less than I need?
Yes, you can still make a claim even if you have been provided for but you have inherited less than you need.
If a Will was not made and you are being excluded by the person dealing with the deceased’s affairs from inheriting, the courts will consider the same principles outlined above.