Contesting a Will in England and Wales is a complex legal process that requires a clear understanding of the valid grounds on which such a challenge can be made. It is not simply a matter of dissatisfaction with the contents of the Will. There needs to be a legitimate reason to contest its validity.
When assessing the validity of a Will, it is essential to establish if there is a prior legally binding Will in place. If no previous Will exists, the estate will be distributed according to the intestacy rules, which may not reflect the deceased’s wishes. However, if an earlier, unchallenged Will is found, its terms will precede an invalid or successfully contested Will.
There are several ways that the validity of a Will can be challenged. However, it is not a decision to be taken lightly. It is important to consider whether a successful claim will yield a better result than the existing Will. Research must be done before contesting a Will. This article outlines the most common grounds on which a Will can be contested in England and Wales.
1. Lack of Testamentary Capacity
For a Will to be valid, the testator (the person making the Will) must have the mental capacity to understand the implications of their decisions. The legal benchmark for this is derived from the case of Banks v Goodfellow [1870], which stipulates that the testator must:
- Understand the nature and effect of making a Will. This means they must know that they are making a Will and that the Will will take effect on their death.
- Comprehend the extent of their property and assets. The person must have a rough idea of the value of their estate and what is in it.
- Recognise the claims to which they ought to give effect. For example, if the deceased is married, they must know they must provide for the spouse. In addition, if they have children who are under 18, their needs must be addressed.
- Not be affected by any disorder of the mind that influences their decisions. The person must be of sound mind. If there are concerns about the testator’s mental capacity, such as cognitive impairments, at the time the Will was executed, this can serve as a basis for contesting the Will.
2. Lack of Valid Execution
The execution of a Will must adhere strictly to the formalities outlined in the Wills Act 1837. For a Will to be valid, it must be:
- In writing.
- Signed by the testator or by another individual in their presence and at their direction.
- The signature must be made or acknowledged in the presence of at least two witnesses present at the same time.
- Each witness must either attest to and sign the Will in the presence of the testator.
Failure to comply with these requirements can render a Will invalid.
3. Lack of Knowledge and Approval
Even if a Will appears to be validly executed, it is essential that the testator knew and approved of its contents. A Will can be contested if it is believed that the testator was unaware of or did not understand the provisions within the document, especially in situations involving suspicious circumstances, such as substantial gifts to individuals involved in the preparation of the Will.
4. Undue Influence or Coercion
A Will must reflect the free and voluntary intentions of the testator. If it can be demonstrated that the testator was subjected to undue influence, coercion, or pressure by another party, leading them to make decisions they otherwise would not have made, the Will can be challenged. Proving undue influence requires substantial evidence, as the courts require a high standard of proof to overturn a Will on this basis.
5. Fraud or Forgery
Allegations that a Will has been forged or that the testator was deceived into including certain provisions can form the basis of a challenge. For example, if the testator’s signature was forged or if they were misled about the contents of the Will, it can be contested on the grounds of fraud.
6. Rectification and Construction Claims
If a Will fails to carry out the testator’s intentions due to a clerical error or a misunderstanding of their instructions, a claim for rectification can be made under Section 20 of the Administration of Justice Act 1982. This allows the court to rectify the Will to reflect the testator’s true intentions.
7. Inadequate Financial Provision
Under the Inheritance (Provision for Family and Dependants) Act 1975, certain individuals, such as spouses, civil partners, children, or dependants, can challenge a Will if it does not make reasonable financial provision for them. The court considers various factors, including the applicant’s financial needs and resources, the size of the estate, and any obligations the deceased had toward the applicant.
What is the Procedure for Contesting a Will?
Challenging a Will involves several steps:
- Seek Legal Advice — Consulting with a solicitor experienced in contentious probate is crucial to assess the claim’s validity and navigate the complex legal landscape.
- Lodge a Caveat — To prevent the grant of probate while the dispute is ongoing, a caveat can be entered at the Probate Registry. This is a temporary measure that halts the administration of the estate.
- Gather Evidence — Collecting pertinent evidence, such as medical records, witness statements, and expert opinions, is essential to support the grounds for contesting the Will.
- Mediation — Before proceeding to court, parties are encouraged to resolve disputes through mediation or alternative dispute resolution methods to avoid lengthy and costly litigation.
- Initiate Legal Proceedings — If mediation fails, formal legal proceedings can be commenced in the appropriate court. It is important to note that strict time limits may apply, especially for claims under the Inheritance Act 1975, which must typically be made within six months of the grant of probate.
Let Elizabeth Middleton Solicitors Help You
Contesting a Will is a serious legal matter that should not be undertaken without careful consideration. It is crucial to seek professional advice and fully understand the potential consequences.
At Elizabeth Middleton Solicitors, we provide expert guidance whether you need advice on the validity of a Will, representation in a legal challenge, or assistance in ensuring your own Will is correctly drafted and executed.
Contact us today, and let us help you navigate your legal matters with confidence.
