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What Are the Grounds for Contesting a Will?

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It is never easy to lose a loved one and the grieving process can be a very difficult time to go through. As such, when the time comes for you to organise their assets, belongings and final requests, it’s natural to hope the process will be simple and respectful.

Unfortunately, this isn’t always the case, particularly when there are questions over whether the deceased’s will truly reflects their wishes or what is fair to their loved ones.

There are many ways someone might wish to contest a will, such as the testator: -

  • did not have testamentary capacity;
  • did not know and approve of their will;
  • did not execute their will correctly;
  • was subjected to undue influence or fraudulent calumny.

Lack of testamentary capacity

A will can be contested on the basis that the testator did not have capacity to make their will, i.e. that they lacked testamentary capacity. When considering whether the testator had capacity to make a will, the court will look at a precedent established in 1870 in a landmark case called Banks v Goodfellow. That case laid down 4 hurdles that must be overcome, namely did the testator: -

  • understand that a will is a document that disposes of their assets on their death?
  • understand the extent of their assets? The testator does not need to be able to recall every single asset or their values, but must be capable of understanding the extent and value of their estate if told.
  • appreciate who would expect to benefit from their assets (i.e. their family, partner, close friends etc. but does not need a perfect recollection of their names.)? The testator must be capable of giving reasons for benefitting some people and excluding others.
  • have a “disorder of the mind” that influences how they made the will? A disorder of the mind may be due to many causes such as dementia, delirium, abuse of alcohol or drugs, physical illness, schizophrenia, depression or bereavement. The disorder must be shown to have affected the way in which the testator made the will (see our blog “can your will be contested if you believe in aliens?”).

The degree of capacity required will vary depending on the nature and complexity of the testator’s assets and their family dynamic. As result, more complicated assets or family circumstances may require a greater degree of understanding by the testator. The test does not require evidence that the testator must have understood those matters, only that they must have been capable of doing so.

A lack of knowledge and/or approval of the contents of the Will

A testator must know and approve the contents of their will. The circumstances in which a testator may not have known and approved the contents could include where: -

  • the testator has assistance to make their will, but the person assisting the testator gives themselves a large proportion of the testator’s assets, contrary to the testator’s wishes;
  • the instructions for the will to be prepared are given to a professional by someone other than the testator, which do not reflect the testator’s wishes; or
  • there was a mistake by the person who prepared the will, as a result of which the will does not reflect the testator’s understanding of it.

Due Execution

Unless the will is made by a member of the armed forces or by a mariner in specific circumstances, to be validly made a will must comply with the Wills Act 1837, which provides: -

  • the testator must be over the age of 18
  • the will must be in writing;
  • the testator must have intended by their signature to give effect to the will;
  • the testator must sign the will in the presence of two or more witnesses present at the same time;
  • each witness must either attest and sign the will or acknowledge their signature in the presence of the testator.

If one or more of these requirements is not met, the will is not valid.

Undue influence

Undue influence arises where the testator is coerced to make a will contrary to their wishes. The testator may be coerced by physical violence or the threat of it, verbal bullying or where the testator is induced into making the will for a quiet life.

It must be proved that: -

  • a person had the opportunity to influence the testator;
  • the person did influence the testator;
  • the influence was in relation to the will;
  • that the influence went beyond persuasion so that the testator felt forced to make the will in a certain way;
  • and the will made as a result of the influence.

Fraudulent calumny

A will is considered as made by fraud where a person poisons the mind of the testator, by making dishonest statements about the character of a person who would otherwise be a natural beneficiary. The person committing the fraud must make the statements knowing they are false or not caring whether they are true or false, with the intention of making the testator change their will.

If the above elements are shown, on the balance of probabilities, to have affected the way in which the testator made their will, the will may be set aside either in whole or in part.

Other types of claims

The above discusses claims about the validity of a person’s will. There may be reasons to challenge the basis upon which a deceased person’s assets are distributed on death, such as: -

  • where a person does not receive “reasonable provision” under the will or intestacy rules, as a result of which a claim may be brought under the Inheritance (Provision for Family and Dependants) Act 1975;
  • proprietary estoppel, i.e. where the deceased had made promises to leave their assets in such a way, which a person relies on to their detriment, only to find the deceased’s promises are not reflected in their will;
  • resulting trusts, i.e. where someone else gains an interest in the testator’s assets as a result of having contributed towards the purchase price;
  • constructive trusts, i.e. where there is an agreement between the deceased and someone else that a course of action gives that person an interest in the testator’s asset;
  • where the testator makes a gift of an asset in contemplation of their death; and
  • lack of capacity in respect of lifetime gifts;

Contact our inheritance disputes solicitors

As you can see, there are numerous ways in which a will or the distribution of a person’s estate can be challenged.

If you have a genuine suspicion that a loved one’s will or estate should be contested or if you need to respond to a dispute raised by another party, contact our inheritance disputes solicitors in Alresford, Sunningdale, Winchester or London by giving your local branch a call or by filling in our online enquiry form.

Alternatively, you can contact us by either telephone 01962 841041 or email info@taylorfordyce.co.uk.