Grounds for Contesting a Will
Are you contesting a will or defending a claim from someone looking to contest a will? Whatever the problem, our solicitors specialising in contesting wills can advise on the grounds for challenging a will.
If you’re considering contesting a will, your first point of contact should be solicitors specialising in contesting wills who can check your eligibility and guide you through the appropriate steps. Contesting a will can be a distressing and complicated process for many people and requires the expertise of a professional who is fully aware of the grounds for contesting a will.
Before deciding to contest a will or defend a claim, you may find it helpful to consider the following grounds for contesting a will:
Lack of Proper Formalities
The main reason for a will being contested for failing to meet proper formalities is when it was not signed or appropriately executed in a way that is compliant with legal requirements. These requirements are laid out in the Wills Act 1837 and state that the following criteria must be met.
- The will must have been written and signed by the testator or by somebody else in the presence of the testator as directed.
- The testator must show by their signature that they intend to give effect to the will in question.
- At least two witnesses must be present at the same time when the testator’s signature is made or acknowledged.
- These witnesses must attest and sign the will or acknowledge the testator’s signature in the testator’s presence.
There are also specific criteria for the eligibility of a witness. Witnesses must not be:
- under the age of 18;
- the executor or beneficiary of the will; or
- related to the testator, executor or beneficiaries by blood, marriage or civil partnership.
If a will is proven to have failed to meet the requirements for validity or the criteria for an eligible witness, there are grounds for contesting a will.
Lack of Capacity
If the testator lacks testamentary capacity, this means they were not of sound mind at the time the will was drawn up and signed. In the 1870 case of Banks v Goodfellow it is stated a will’s validity relies on the testator:
- having a full understanding that they are making a will and that they are authorising the effects of said will;
- acknowledging the full value of their estate;
- acknowledging and comprehending the consequences of including or excluding individuals from their will; and
- not suffering from a ‘disorder of mind’ that may affect their views or cognition.
The law has evolved since the 1870 case of Banks v Goodfellow, but the principles are still the same today. Having a solicitor prepare your will could provide valuable evidence that you were of sound mind if it is subsequently challenged.
If the testator was pressured into, coerced or exploited by someone else to state the terms in the will there could be grounds for contesting the will. However, watertight evidence is needed to prove this was the case. If you believe the creator of a will was under duress when drawing up or signing a will, our team of solicitors specialising in contesting wills can assist you in making a claim.
Lack of Awareness or Approval
If you believe the person who made the will was not aware of and did not approve the contents of the will, there may be grounds to challenge its validity. A will can be contested for lack of awareness or approval even if the will meets the requirements of a properly executed will and is signed by someone of sound mind. However, there must be evidence of suspicious circumstances or that the testator didn’t have knowledge of the content of the will.
An experienced solicitor can work with you to ascertain whether you are eligible to challenge a will on these grounds.
Forgery or Fraudulent Activity
If you think a will has been forged or has been affected by fraudulent activity, there may be grounds to challenge it. However, fraud can be difficult to prove. Because of the challenges in proving fraud, legal advice and assistance must be obtained and you should contact one of our solicitors specialising in contesting wills.
You may also be eligible to challenge a will under the Inheritance (Provision for Family and Dependants) Act 1975 if you have been excluded from a will or the provision left for you was not sufficient to help you meet your needs.
Our wills, probate and trusts team is here to help.
Please call us to find out how we can help. We can talk on the phone or arrange a meeting where we can discuss your options and give you a clear idea of timeframes and costs.
Alternatively, please contact us online and we’ll call you back when it’s convenient for you.