Losing a loved one is never easy, and if you suspect that their will may not reflect their true wishes, it can make what is already an emotional time even more difficult.
On what grounds can you contest a will?
There are a number of ways that the validity of a will can be challenged. But it’s not a decision to be taken lightly. It’s imperative to consider whether a successful claim would actually produce a better result than the existing will and the appropriate research must be done before embarking on a claim.
For example, if there is no earlier will, the rules of intestacy will apply. However, if there is an earlier, unchallenged will, the terms of that document will take effect.
In order for a will to be deemed valid on it must meet certain requirements, often referred to as formalities. These are set out below together with an overview of the most common grounds on which a will can be contested.
Requirements to be deemed a valid will
Section 9 of the Wills Act 1837 states that for a will to be valid, it must be:
- in writing;
- signed by the testator (or someone else in the testator’s presence and at his direction);
- the testator must intend when signing the will for it to be valid; and
- the testator’s signature must be acknowledged in the presence of at least 2 witnesses.
If there is concern as to whether a will is valid for failing to meet the requirements, the first thing to consider is contacting the witnesses. This will help establish whether the will has been properly executed and if necessary, witness statements of due execution can be obtained and filed at the probate registry, when applying for a grant of probate.
If the will has been properly executed, the presumption is that the will is valid, unless one of the concerns set out below arises.
There are a number of grounds on which a will can be contested:
1) The deceased did not have the required testamentary capacity
The person contesting the will must raise a real suspicion that the deceased lacked capacity and is done, the burden of proof passes back to those seeking to prove the will, to establish that the deceased did have capacity.
The test which is applied is set out in Banks v Goodfellow [1870] LR 5 QB 549, which states that the testator must:
- understand the nature of making a will and its effect;
- understand the extent of his/her property;
- be able to comprehend and appreciate the claims to which he/she ought to give effect; and
- have no disorder of the mind which ‘shall poison his affections, pervert his sense of right, or his will in disposing of his property'.
In a claim of this nature, the medical records of the deceased, and the opinion of a suitably qualified medical expert, are crucial to assessing the claim and should be obtained at an early stage.
2) The deceased did not properly understand and approve the content of the will
If the court’s suspicion is aroused, it is for those seeking to propound the will to prove that the deceased fully understood how it operated and approved its contents.
Examples of suspicious circumstances could be where the deceased:
- was hard of hearing, or had a speech impediment;
- was visually impaired; and/or
- had low levels of literacy, and no adjustments were made by the will drafting solicitor;
- was frail, unwell or otherwise vulnerable, and the will is particularly complex or unusual; or
- is purported to have directed that the will be signed by someone else.
Alternatively and commonly, such a claim can also arise in circumstances where a relative (usually an adult child) of the deceased has given all the instructions to the will drafter and the will drafter has never met the deceased and as such, calling into question the deceased’s understanding of the will they executed.
3) Undue influence
In the context of making a will, there is no presumption of undue influence. If a will is to be found to be invalid, it must be established that actual undue influence occurred. It is for those challenging the will to produce sufficient evidence to satisfy the court.
A claim of this nature should be pursued cautiously. It must be proved that the testator acted against their own volition, and that they were coerced into making a will that that they did not wish to make.
As the nature of this allegation is tantamount to fraud, the evidential burden is high, and if a claim fails, there are likely to be serious cost consequences.
Bear in mind also that if coercion was exercised, the chief witness (i.e. the deceased) will not be able to give evidence, and it will usually have taken place behind closed doors and in the absence of any other person. It can therefore be extremely difficult to obtain sufficient evidence to convince a court that undue influence has been exercised.
4) Forgery and fraud
If it can be proved that a will has been forged, it will be invalid. At the outset, it is advisable to obtain the opinion of a handwriting expert as to whether the testator’s signature/handwriting is genuine. The expert will need to see a considerable number of original samples of the deceased’s writing and signatures from the relevant point in time i.e. around the time the will was signed. If the expert produces an inconclusive report, it is unlikely that a claim would succeed but may encourage both parties to try and agree settlement terms.
More generally, it is possible, though rare, for a will to be challenged on the basis of fraud, i.e. an intentional deception made for personal gain, or to damage another individual. An example of such a claim that has succeeded and of which Wright Hassall has experience, is where a person impersonated the testator.
These claims will be few and far between, as there are usually alternative and less risky grounds for challenge which can be pursed.
5) Rectification
A will may not reflect the wishes of the deceased due to a clerical error, or a failure to understand the testator’s intentions. The scope is however, very limited.
A clerical error is where a mistake is made in recording the testator’s wishes. If either scenario occurs, the court will rectify the will to give effect to the true intentions of the deceased. A claim of this nature must be issued within 6 months of a grant of probate being issued.
If it appears there has been a mistake in the drafting of a will, the initial steps should be to obtain and review the solicitor’s file, together with securing a statement of the solicitor’s understanding of the deceased’s wishes.
If it becomes apparent that the will writer understood the instructions, but incorrectly applied the law, then the will is still valid, but there may be a claim for professional negligence either by the executors if the estate has suffered loss, or the intended beneficiaries if they have suffered loss.
How to contest a will
If someone has passed away, and there is concern that their will does not reflect their wishes, specialist advice should be sought. At the outset, a careful analysis of the facts and likely outcomes will need to be undertaken.
When to bring a claim
Most claims challenging wills where there is property involved, should brought no later than 12 years from the date of death. However, this is not always the case, and there are a number of notable exceptions where the timeframe is much shorter (e.g. a claim for rectification as above or a claim under the Inheritance (Provision for Family and Dependants Act) 1975). At the other end of the spectrum, are matters of fraud, where a limitation period does not apply.
Initial investigations should be made early, and ideally before a Grant of Probate has been issued and the estate has been administered. In some circumstances, it will be appropriate to enter a caveat to stop a Grant of Probate being issued. In terms of investigations, it can take quite some time for third parties to respond to queries and as time passes, the recollections of those able to assist may fade. Indeed, obtaining medical records can also be a lengthy process.
From a practical standpoint, if an estate has been substantially administered, this is likely to impact on the viability of contesting a will due to the limited assets which might be recoverable, if the claim were to succeed.
There are a number of grounds on which a will may be challenged however, each case is unique, and advisors should obtain a good grasp of the character of the deceased, the nature of family relations, any testamentary intentions of the deceased (as expressed to friends, family or third parties) and consider this against the contemporaneous evidence available in order to provide advice to a client. An informed decision can then be made whether to contest a will and if so, on what basis. Or in the alternative, a client may have a claim for reasonable financial provision from the estate pursuant to the Inheritance (Provision for Family and Dependants Act) 1975.
PLEASE NOTE: this article was originally written for and published in the Gazette.
The information provided in this article is provided for general information purposes only, and does not provide definitive advice. It does not amount to legal or other professional advice and so you should not rely on any information contained here as if it were such advice.
Wright Hassall does not accept any responsibility for any loss which may arise from reliance on any information published here. Definitive advice can only be given with full knowledge of all relevant facts. If you need such advice please contact a member of our professional staff.
The information published across our Knowledge Base is correct at the time of going to press.
