OTS Solicitors Wills and inheritance disputes team
To speak to a member of the London based OTS Solicitors Wills and inheritance disputes team please call us on 0203 959 9123 for a discussion about how we can help you or contact us through our online enquiry form.
Contesting a Will
If you are thinking about making a Will it is important that you take professional legal advice on your Will to minimise the risk of your Will being contested.
Contesting a Will can be expensive, both emotionally and financially, so if you are contemplating contesting a Will or you are facing a challenge to a Will it is best to get early specialist advice on the Will and your best options. Those options can include negotiation, mediation or court litigation as well as advice on your prospects of successfully contesting a Will or opposing the Will being challenged.
Grounds for contesting a Will
There a number of ways that a Will can be challenged or contested. The grounds for contesting a Will are:
The person making the Will lacked testamentary capacity; or
The Will was not validly executed or completed; or
The person making the Will was subject to undue influence; or
The Will is fraudulent or forged; or
The Will needs rectification and/or its contents need construction.
Contesting a Will for lack of testamentary capacity
To make a valid UK Will the person making the Will (the testator) must have be of ‘sound mind’. What that means in practice is that for a Will to be valid the testator must:
Understand that they are making a Will; and
Understand the effect of the Will; and
Comprehend the impact and consequences of either including or excluding someone as a beneficiary in the Will; and
Know the approximate value of their wealth or estate; and
Not be under a health condition or disability that is affecting or influencing their views on the provisions in the Will.
In practice what this means is that if there are any concerns that a relative may lack capacity, or you fear that the Will could be challenged because of the testator having a medical condition, it is a sensible precaution to get a doctor’s certificate to say that the testator has capacity. A medical certificate cannot guarantee that a Will won't be challenged but it may make court litigation less likely to take place or succeed.
Contesting a Will on the grounds of invalidity
If a Will is not correctly drawn up then it can be challenged. That is why it can sometimes be a false economy to try and prepare your own Will without expert legal advice.
Will solicitors are often asked what sort of mistake or error can result in a Will being contested. Common errors include:
A testator not signing the Will correctly; or
The testator’s signature to the Will not being witnessed by two witnesses. It is often thought that one witness is sufficient but that is incorrect.
Contesting a Will on the grounds of undue influence
It is all very well for a relative to think that the testator has been ‘got at’ but to contest a Will on the grounds of undue influence you have to be able to show that the person making the Will was unduly influenced, under duress or coerced.
Gut views about a beneficiary or a dislike of their character are not sufficient to contest a Will. That is because the law in the UK does not assume that someone in a position of trust, such as a nurse of an elderly or disabled testator, has necessarily unduly influenced the testator.
The evidential threshold to prove undue influence is high. To contest a Will on the basis of undue influence you need evidence that undue influence took place resulting in the testator making or changing their Will.
Contesting a Will on the grounds of forgery or fraud
A Will can be contested if forgery or fraud has taken place. An example of forgery is where the testator’s signature to the Will is forged by another person. A specialist Will solicitor can advise on evidential requirements to contest a Will on the grounds of forgery, such as a handwriting expert. An example of fraud is where an elderly testator is told that the law says that they must leave all their estate to one named beneficiary.
Will rectification and construction
If a minor error in a Will means that the wording of the Will does not carry out the testator’s wishes then it is possible to make an application to court for rectification of the Will. Alternatively, a construction court case can be commenced if the wording of a Will is either unclear or ambiguous. In a construction case the court is asked to decide on the meaning of the Will.
Applying to court to challenge a Will
If you want to challenge a Will, then you should seek early expert legal advice. A Will solicitor will tell you that it is best to contest a Will before probate is granted. That is because if a Will is contested before probate you can file a notice at the probate registry to stop probate being taken out on the Will. If probate cannot be taken out then the estate should not be distributed to the beneficiaries.
If a notice is placed before probate is granted then the beneficiaries of the Will are told about the claim and they can then say whether or not they object to the claim. Court proceedings can be complex and costly and that is why it is so important to get the best legal advice before either contesting a Will or responding to a Will being challenged.
What happens if a Will is declared invalid?
It is important that you are aware of the consequences of contesting a Will as the consequences of challenging a Will may not be what you expect. If the court decides a Will is invalid then any last previous valid Will could be submitted to probate. The estate would then be distributed in accordance with the earlier Will. If there was no earlier valid Will then the estate would be distributed in accordance with UK intestacy rules. Therefore it is best to get expert legal advice before contesting a Will.