Contesting a Will

Your will is a legal document which states how you want your estate divided after you die. While it is your final say, it is possible for others to contest your will if they can prove it was made under duress or else they spot a mistake. Here is a list of the people entitled to contest a will:

  • Your spouse
  • Your former spouse if he/she has not remarried
  • Your children
  • Your step-children
  • Any partner of yours who lived with you for at least two years
  • Any other dependants

What Happens If Someone Is Unhappy With A Will?

If an individual is not happy with a will because they believe it does not reflect the real wishes of the individual making the will (the testator), it was made in dubious circumstances or if family disagreements take place over the division of the estate, they have the option to contest the will.

This is possible by seeking a caveat in order to prevent the assets of the estate being divided. While the caveat is only available for 6 months at a time, it can be renewed. In some instances, this delaying tactic allows matters to be settled before the services of a court are required.

Top Reasons For Contesting a Will

If an agreement cannot be made during the caveat period, there are two main grounds on which a will can be contested:

  1. Showing that the testator was unable to understand what they were doing when the will was drawn up.
  2. Showing that another party coerced the testator thus ensuring the contents of the will were manipulated.

It is important to note that you can’t contest a will simply because you’re not happy with the inheritance you received. The most obvious reasons for contesting a will are fraud or forgery but these allegations are extremely hard to prove and making either case involves a lengthy and expensive legal battle. Below, we look at the two grounds for contesting a will.

If The Testator Had A Lack Of Testamentary Capacity

Proving that the testator suffered from a lack of ‘testamentary capacity’ involves showing that the testator understood:

  • The effect of the will they made.
  • If they were meeting the reasonable expectations of others when the document was being drawn up.
  • How much property/assets etc. they were giving away.

If a lawyer prepared the will, it must be shown that the testator did not have testamentary capacity when the will was written. If you want to dispute a will based on the above, you need to find evidence that the testator was mentally incapable of making rational choices at the time the document was written.

As you can imagine, this is a difficult process since it involves getting this evidence via a psychiatric or medical assessment which must be carried out by an expert. Therefore, it is crucial that you get medical records and evidence from witnesses who were in contact with the testator during the period when the will was being made.

Proving Undue Influence

It is not uncommon for courts to revoke wills on the grounds of undue influence but again, this is a tough case to prove. There is a difference between proving that the testator was influenced by their own sentimentality and showing that the testator was the victim of intimidation which caused him/her to alter the contents of the will.

It is relatively common for friends and relatives, especially those associated with wealthy individuals, to attempt to curry the favour of the testator in order to gain favour in the will. As distasteful as this may seem, it is not actually against the law to remind someone of your service at the time they are making a will.

However, it is illegal to place physical or psychological pressure on the testator in order to influence their decision. If you are trying to prove ‘undue influence’, the key is to show that ‘coercion’ was used. This can consist of obvious and sometimes brutal tactics such as physical violence or else it could be a more subtle approach such as getting close to the testator in his/her last days when resistance is much less likely.

Challenging Mistakes In A Will

There is also the possibility that a mistake was made in a will which ensured that the testator’s final wishes were not honoured. If you believe there has been such an error and it has resulted in you losing out on an inheritance, you have the option to apply to the court and ask for the will to be amended. This process is known as ‘rectification’ and you must make the application within six months of the date when probate was granted.

According to the Administration of Justice Act 1982, a will can be rectified if a court believes that the document does not represent the true intentions of the testator. You can only make this appeal if:

  • There is obvious evidence that the will fails to meet the wishes of the testator due to a clerical or typographical error. For example, a legacy which is supposed to be £10,000 actually says £1,000 in the will.
  • A clear failure to understand the desires of the testator when the will was drawn up. For example, if a lawyer drew up the will without understanding what the testator wanted, you could take the case to court.

Claims Against a Trust or Estate

Even if you have no issue with the contents if the will itself, you can challenge the competency of the executor. For example, you may believe the executor is failing in his/her duty to honour the testator’s wishes and this misconduct is causing you to lose out on your inheritance. In order to remove or replace an executor/trustee, you must prove that they are deliberately acting in a dishonest manner or else they are guilty of negligence.

If you believe you have grounds for challenging or contesting a will, get in touch with us today.