Listed below are the most common grounds for contesting a Will.
This can be a complex area. If a person thinks they should have been left a share of someone’s estate they can make a claim if they qualify as an eligible claimant. For example, under the Inheritance Act a claim can be made against an estate on the basis of a lack of reasonable financial provision for members of the deceased’s family or in certain cases, other dependent person / persons as well.
Lack of testamentary capacity
When a person makes a Will they must be of sound mind for it to be a valid Will. Any of the reasons below could be the starting point for a challenge based on a lack of testamentary capacity:
- The testator was not aware that they were making a Will and the effect of that Will.
- They did not know the nature and value of their estate.
- They did not understand the consequences of including and excluding certain people under their Will.
- They were suffering from a ‘disorder of mind’ which might have influenced their views.
An invalid Will - lack of valid execution:
A valid Will must meet one or more of the requirements listed below. In addition, there are strict rules about who can witness a Will. Legally a Will is deemed to have been validly executed unless there is evidence or any doubts over any of the requirements below:
- The Will has to be in writing and signed by the testator or signed by someone else in their presence, who has been directed to do so 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.
- 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.
Lack of knowledge and approval
The testator must know that they are signing a Will and approve of its contents. To contest a Will on the basis of lack of knowledge and approval it must be shown that the testator was not aware of the content of the Will or that there were suspicious circumstances. This ground can be used even if the Will appears to be validly executed and the testator had mental capacity.
Actual undue influence must be demonstrated to prove that a person was unduly influenced, coerced or under duress when making a Will.
Fraudulent wills and forged wills
If you believe forgery or fraud has taken place you can contest a Will.
Poorly written Wills
A construction claim may be brought if the words in a Will are unclear or ambiguous. A Will may be rectified where 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. When a Will is negligently drafted this is often the first port of call before making a claim for professional negligence.