Grounds for Challenging a Will

25th July 2016
Grounds for Challenging a Will image

Grounds for Challenging a Will

Introduction

One of the advantages of making a Will is ensuring that the maker’s (“the Testator”) loved ones/family are provided for and to avoid family squabbles.  Notwithstanding this, the provisions in a Will can be challenged or the contents contested by relatives or interested parties because for example they feel that it does not reflect the wishes of the Testator or that they believe that they have not got their fair share.  It appears (sadly) that the number of challenges to wills is on the increase and that there are a significant number of grounds upon which someone can challenge a Will.

Grounds for Challenging a Will

  1. Lack of Capacity

For a valid Will to be made, the Testator must be of sound mind.  The Testator should:-

  • have understood that they are making a Will and the effects of that Will;
  • know the nature and value of their estate;
  • understand the consequences of including and excluding certain people under the Will;
  • not be suffering from any “disorder of the mind” which may influence their views.

For example it is common to challenge wills on the grounds of lack of capacity if the Testator suffered from a disease like Alzheimer’s or Dementia.

  1. Not properly executed

For a valid Will to be made it must meet all the following requirements:-

  • it must be in writing, signed by the Testator or somebody in their presence, who is being directed to do that by the Testator;
  • it must appear that the Testator intended by their signature to give effect to the Will;
  • the Testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time; and
  • each witness must either attest and sign the Will or acknowledge the signature in the presence of the Testator, but not necessarily in the presence of any other witness.

There is a legal presumption that a will has been validly executed unless there is evidence to the contrary of either one or more of (a) to (d) above.

  1. Undue influence

If the Testator has been coerced into making a Will on particular terms, then it may be invalid.  The Testator’s freewill must have been overcome by someone else.  If the Testator was elderly or vulnerable then this may provide more scope for arguing about the validity of the Will upon the grounds of undue influence.

  1. Fraudulent or Forged Wills

For example someone may forge the Testator’s signature on a document, purporting to leave everything to that person.

  1. Lack of Knowledge and Approval

A Testator must have knowledge of and approval of the contents of the Will.  For example if a person helped prepare a Will and included a substantial gift to himself, then if the Testator is not aware of that then the Will could be contested.

  1. The Will makes no or insufficient provision for a family member/dependent

Certain classes of people, usually close family members, may be able to challenge a Will if it does not make reasonable financial provision for them.  For example if a spouse is left with little or nothing from a Will but the Will includes say a large gift to a Charity, then a spouse might argue that he or she has not been left enough money from the estate to live off.

  1. The Testator made promises

A claim may arise if the Testator promised someone that they would inherit when the Testator died and that person acted upon this and to his detriment.  For example if that party worked for the Testator without payment or carried out significant work to the Testator’s property.

  1. Rectification

A Will may be rectified when it fails to carry out the Testator’s intentions either because of a clerical error or because of a failure on the part of the person preparing the Will to understand the Testator’s instructions.  A party can apply to rectify the Will and/or alternatively make a claim in negligence against the solicitor who prepared it.

  1. Another Will found

Each successive new Will normally cancels the previous Will automatically, but often people forget where the last Will is kept so that a “wrong” last Will may be found initially.  Subsequently when the correct last will is found, this can give grounds obviously for contesting the older Will.

  1. Will invalidated

Sometimes certain events invalid a Will, e.g. divorce.  Foreign Wills can often cancel a UK Will and vice versa.

  1. Will destroyed, could it still be valid?

Sometimes a Will can be destroyed, but this does not necessarily mean that it is invalidated.  There have been occasions where a will has been unintentionally destroyed or thrown away, but remains valid as there was never an intention by the Testator to revoke.  In such circumstances it is possible to prove the Will by way of a copy.

So how do I contest a Will?

If you want advice about contesting a Will, or defending a claim that has been made against a Will, then please contact Daven Naghen on 01775 722261 or email daven.naghen@maplessolicitors.com or visit our offices or arrange an appointment to see Dav at 23 New Road, Spalding, Lincolnshire, PE11 1DH

If you want advice in making your Will in order to reduce or eliminate the risk of such claims being made against your estate then please either contact one the Wills, Probate & Trusts Team:

Jane Mawer on 01775 722261 or email jane.mawer@maplessolicitors.com

Faye Blair on 01775 722261 or email faye.blair@maplessolicitors.com 

Jamie Dobbs on 01775 722261 or email jamie.dobbs@maplessolicitors.com or visit our offices at 23 New Road Spalding Lincolnshire PE11 1DH.


Cancer Research UK Free Will Service image

Cancer Research UK Free Will Service

Maples Solicitors are pleased and proud to announce that it is working in partnership with Cancer Research UK to offer their Free Will Service for the over 55’s.

The vast majority of people have been affected in some way by cancer and we wish to support Cancer Research UK in its life saving work by offering their Free Will Service.

Over a third of Cancer Research UK’s research is funded by gifts in Wills and we believe we can play a vital role in helping in the fight against cancer. Writing your will for free using the scheme could help beat cancer sooner.

Please contact a member of our Wills and Probate Department:-
Jamie Dobbs- jamie.dobbs@maplessolicitors.com
Jane Mawer- jane.mawer@maplessolicitors.com
Faye Blair- faye.blair@maplessolcitors.com

Or telephone the office 01775 722261 and ask to speak with one of the team

Read More

Testimonials

Gemma Mayer LLB

"I would highly recommend Maples Solicitors, especially Gemma Mayer, for any conveyancing work. The level of support and professionalism was excellent at all times. I also felt if I needed to ask or clarify anything that it was not an issue. Buying and selling a house is stressful enough, but Gemma helped me through it step by step."

Anita Toal LLB BA

"I think you are brilliant. You can use my comments above. You are efficient, friendly and quite clearly very good at what you do. Mainly you don’t leave people hanging around too long for." "So easy to talk to her and she understood what I wanted. She put me at ease and I cant thank her enough"

James Turner BA

James Turner was extremely helpful with our buying process. Everything went smoothly. We are very happy with the level of professionalism demonstrated by the office. Highly recommended solicitors. Will definitely do business with them again.

Daven Naghen LLB

"Daven provided an excellent service, from attending the first interview with me to the final court appearance. He filled me full of confidence that he would defend me to which he did and come out with an excellent outcome in view of my position that I had put myself in."

Faye Blair LLB

Faye was excellent, sensitive and acted very well to the time constraints we faced. Great service and dealt with compassion at such sad times made the process less painful very professional.

Jamie Dobbs ACILEx

Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

Mike Pepper MA

Mike Pepper gave us excellent advice. He was always most helpful and accommodating giving lucid explanations every step of the way. Thank you Mike.

Donna Sandison FCILEx

Donna has been helpful and professional every step of the way during the process. Always on hand to answer any queries and totally professional and friendly at all times.