How to contest a will?

There are a number of grounds for contesting a will. This article is part of a series which aims to identify whether it is possible to contest a will. 

Where a will has been executed in suspicious circumstances the court must be satisfied that the testator (the person making the will) understood and approved the contents of his will. In suspicious circumstances, those contesting a will will often raise allegations of undue influence (i.e. the testator was coerced into making the will) or that criminal activity has taken place. It is often difficult to succeed with such arguments, as the burden of proof is high. An alternative, where suspicious circumstances exist, is to raise an argument that the testator did not have the necessary knowledge to understand his/her will and that they did not approve the content. The burden of proof for such cases is far less.

Presumption of knowledge and approval

Where a will has been executed correctly (i.e. the testator has signed the will in the presence of two witnesses who have also signed the will) and the testator had the necessary testamentary capacity, knowledge and approval will be presumed.

However, there are certain circumstances, which are detailed below whereby it must be proved that the testator had the necessary knowledge to understand the content of their will and that they approved the content.

Exceptions to the presumption of knowledge and approval

If the testator is one of the following, the court will require sufficient evidence to prove that the testator understood and approved the content of the will, namely:

  • deaf and/or dumb;
  • cannot speak or write or is paralysed;
  • blind or illiterate; or
  • the will is alleged to have been signed by another person for the deceased at his direction.

Circumstances which excite the vigilance and suspicion of the court when contesting a will

In addition to the exceptions above, whilst there is a general presumption of knowledge and approval, if the circumstances surrounding the will being executed raise such suspicion, it will then be for those who believe the will to be valid to call evidence to dispel the suspicions. The greater the suspicion, the greater the burden on the person trying to prove the will to dispel that suspicion. Even if there are suspicious circumstances, if the will is a simple document, it is often easier to prove knowledge and approval.  

A classic example of a case in which the last will of the testator was found to be invalid on grounds of knowledge and approval is Vaughan and others v Vaughan [2005]. The judge in this case found that the facts led themselves to being “bristled with suspicious circumstances”. Instructions for the will were given by a beneficiary and the testator took no advice in relation to the will. It was suggested that a medical opinion be obtained but this advice was ignored by the beneficiary. The testator did not read over the will at the time it was executed and accordingly the judge found that the testator did not have the necessary knowledge and approval.

In circumstances where part of the will is read over to the testator but not all the will, the rules relating to knowledge and approval may only apply to part of the will.  

Implications

Where a will is successfully disputed and the court confirms the will is invalid, if there is not an earlier valid will, then the testator’s estate will be distributed according to the intestacy rules.

Other articles in the series: 

About the author

Martin Oliver Partner

Martin specialises in inheritance disputes such as contesting a will and litigation involving wills and trusts. "He has a very good legal brain, an eye for detail and a tactical sixth sense ... " 'Chambers & Partners 2014