On what basis can I contest a Will?

It is usual for a person to make a Will to make sure that following their death, their estate is divided according to their wishes. A person making a Will (‘the Testator’) has what is called ‘Testamentary Freedom’, which means that they are allowed to leave their assets (estate) when they die to whoever they wish, including charities. There is no requirement to leave certain relatives anything if they do not wish to do so.

It is particularly important to make a Will if you want someone other than those who would inherit under the Intestacy Rules, to receive your estate. The Intestacy Rules apply when a person has not made a Will.

While people don’t usually like to go against the wishes of a loved one, there are occasions when family and loved ones may contest a will. However, it is important to note that there are only certain legal grounds when a Will can be contested.

Lack of valid execution

For a Will to be valid, it must have been properly executed. This means it must be made in accordance with the Wills Act 1837.

The person making the Will must be at least 18 years old. The Will must be in writing, it must be signed by the Testator and their signature must be made by the person making the Will in the presence of at least two witnesses who are present at the same time. If the Will does not comply with these conditions, then the Will would be invalid for lack of due execution.

Lack of capacity

For a Will to be valid, the person making it must be able to understand the nature of making a Will and its effect, be able to understand the extent of the property of which they are disposing, they must be able to comprehend and appreciate the claims to which they ought to give effect and have no disorder of the mind that perverts their sense of right of their natural faculties in disposing of their property by will (Banks v Goodfellow).

The requirements set out in the case of Banks v Goodfellow must all be met. If any one of those conditions of the test fails, then testamentary capacity will not be made out.

If a person did not have testamentary capacity when they prepared and executed their Will, then the Will may be challenged. If it determined that the person making the Will lacked capacity, then the Court can declare the Will as invalid.

Lack of knowledge and approval

Lack of knowledge and approval means the person making the will did not fully understand the contents of the Will and were not able to provide their approval. In order for a will to be valid, they must be aware of the contents of the Will and must be able to fully understand it. This could be done by reading it or having it read to them to ensure they understand its contents.

If those challenging the Will can demonstrate that the Testator was not fully aware of the contents of the Will, the court can declare the will as invalid. In some situations, there may even be suspicious circumstances, such as a large gift being left to the person who helped them to prepare their will.

Undue influence

Undue influence is where the Testator has been coerced into making a Will by someone else, usually to benefit the person who is influencing them to make the Will.  While it can be difficult to prove, the Court can deem a Will invalid due to undue influence. Last-minute changes, especially with new beneficiaries being added, are often warning signs of coercion.

Forgery or fraudulent wills

In some instances, the signature and even the contents of a Will may be forged. Signatures and any handwriting should be compared to the individual’s typical handwriting. In other instances, a Will may have been created fraudulently and would typically go against the wishes of the Deceased and usually in favour of the person making the fraudulent will. If there is evidence to prove that a Will is fraudulent or has been forged, the Court can deem it invalid.

Whatever the reason for challenging, it is important to obtain legal advice at the outset to ensure that you can prevent the estate from being administered under a potentially invalid Will.

Laura Pracy, Contentious Probate Solicitor & Head of Inheritance and Will Disputes, said:

"If you have any concerns regarding a Will and want to challenge it, you must not delay in seeking legal advice. A solicitor will be able to determine whether there are grounds to contest a will, or be able to address any concerns you might have."

How can we help?

For legal advice on contesting a Will contact our expert Contentious Probate Solicitors on 0161 785 3500 or email contentiousprobate@pearsonlegal.co.uk.

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Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.