When can you challenge a Will?

When can you challenge a Will?

After a person has died leaving a Will, someone may think that they should receive an inheritance, or more inheritance than they are due to receive, from the deceased person’s estate. Here is our basic guide to challenges to a Will, known as contesting a Will.

A Will is a legal document designed to detail how someone’s estate (property, money and other assets) will be distributed when they die. In the vast majority of cases, the recently deceased person’s wishes are respected, but sometimes, someone will launch a legal action to contest the Will. 

To win a case contesting a Will, you must prove that the Will is invalid. Below we list five instances where you can question the validity of a Will. Let’s look at them in detail.

1 – Lack of Testamentary Capacity

The law states that when making a Will, the person involved must have testamentary capacity.  Basically, the person making the Will needs to understand they are making a Will and its effects, have an understanding of the extent of their property which is being disposed of in the Will and have an appreciation of the people who would expect to benefit from their Will. 

The starting position is a presumption that the Will-maker has capacity, therefore to succeed in a case on the grounds of a lack of testamentary capacity, you must prove that the deceased person lacked the required capacity when they made their Will.  This will almost always involve an examination of the Solicitor’s file who prepared the Will together with any relevant medical notes. 

It is worth noting that it is not always the case that if a Will-maker had some form of memory impairment at the time the Will was made, that this will automatically result in a finding of lack of testamentary capacity.

2 – Lack of Knowledge and Approval

When making a Will, the person must be aware of and approve the contents of the Will. 

To win a case on this ground, you must prove that the person was not aware of the full contents of the Will. 

As with lack of capacity, in most cases knowledge and approval are presumed, therefore it will be for the person challenging the Will to prove their claim. However, there are various situation where then the burden of proof shifts to the person trying to uphold the Will, rather than the person challenging it.  For example, if the Will-maker is deaf or blind, if the Will is full of obvious errors or if the circumstances surrounding the preparation or content of the Will are suspicious.

3 – Undue Influence

The law states that the person making a Will must not be placed under undue influence when drawing it up. This is known as coercion.

This is to stop, for example, people threatening the Will-maker with violence in a bid to make them a beneficiary in their Will or in a bid to increase the benefit they will receive in the Will. Challenges on this basis usually arise when a Will is changed unexpectedly at the last minute or the changes made contradict what the testator has previously stated to third parties.

To win a case on these grounds, you must show that someone received a benefit from the Will solely due to them coercing the Will-maker. Such claims are very hard to prove as usually any acts of undue influence are done in private without any witnesses.

4 - Non-compliant with the Wills Act (1837)

Making a Will is a process that must be followed to the letter in order to comply with the law. The law states that a Will must be in writing, signed by the person making it, with two witnesses being present and co-signing.

Due to the Coronavirus pandemic, the rules on witnessing Wills have been amended but are broadly the same. This change is to do with witnessing Wills by video link for a limited period.

If, when the Will is produced on the person’s death, you can demonstrate that this process was not followed, you may be able to declare the Will invalid.

5 - Forgery and fraud

If the signature on the Will is a forgery rather than the Will-maker’s acknowledged signature, the will is invalid.

If the Will-maker does not include a beneficiary in their Will due to a person giving them false information, this is also considered fraud.

Consequences of a Will being declared invalid

If a claim to challenge the validity of a Will succeeds, then the Will-maker’s estate will be distributed in accordance with their previous Will (assuming it is valid).  If there is no previous Will, then the estate will be distributed in accordance with the rules of intestacy.

Claims under the Inheritance (Provision for Family and Dependents) Act 1975

(Inheritance Act claims)

Inheritance Act claims do not challenge the validity of a Will. Instead, an individual may acknowledge that a Will is valid but still claim that it does not make “Reasonable Financial Provision” for them. These claims are limited to certain categories of people such as the spouse or civil partner of the deceased, a child or stepchild of the deceased or anyone who was being maintained by the deceased immediately prior to their death.

These claims are extremely complex and there are also strict time limits to make the claim.  Therefore, if you are considering an Inheritance Act claim, you should speak to a specialist solicitor as soon as possible.

Find out more from Couchman Hanson Solicitors

If you believe that you have not benefited from a Will because of one of the above reasons, or you wish to make an Inheritance Act claim, talk to a Probate solicitor. You’ll be able to talk through your situation and get some valuable advice.

If you’re thinking of making a Will, or updating an existing Will, make sure you talk to a Probate solicitor. They will make sure your Will follows your precise wishes with no ambiguity. Contesting a Will can be a costly and stressful process; you do not want to inflict it onto your loved-ones because your Will wasn’t put together correctly.

At Couchman Hanson, our solicitors genuinely care about getting the best outcome for you. We’re highly professional, with ‘city’ level talent and experience, but also friendly and welcoming. Everything we do fits with our values of integrity, honesty and authenticity.

Call 01428 722189 or email enquiries@couchmanhanson.co.uk

Please note, the above information is not an exhaustive explanation of challenging a Will and Inheritance Act claims.  We recommend you speak to a Wills and Probate solicitor about the specific circumstances of your situation.