There are times when relatives or interested parties may want to contest a will because they feel it does not reflect the wishes of the deceased. Sometimes there are disagreements in the family, rivalries or issues that emerge through lack of communication.
Challenging a will is demanding and expensive and it is important to obtain good legal advice. If you are successful the will is declared invalid and the next most recent will stands in its place. If there is no such will the rules of intestacy will apply.
You can contest a will if you have reason to believe that there may be something amiss with it, but not if you are just unhappy with the amount of your inheritance. There are various reasons why a will may be challenged. These notes give brief details of some of the most common reasons for these disputes.
To be valid, a will must be written and then signed in the presence of two witnesses, neither of whom can be beneficiaries of the will. The legal presumption is that a will has been validly executed unless there is evidence to the contrary, such as doubts over any of the above factors. There are also strict rules about who can and cannot witness a will. If the will does not comply with these requirements it is usually invalid and ineffective.
Lack of capacity
This involves demonstrating that the person making the will did not understand what they were doing at the time they made the will. Testamentary capacity is measured very broadly and seeks to determine whether or not the person making the will understood among other things:
- The effect of the will they made;
- The extent of the property they were disposing of;
- The expectations of others which they reasonably ought to meet in their will.
Disputing a will based on a lack of testamentary capacity requires evidence that the person making the will was not mentally capable at the time of making the will. Medical records and evidence from witnesses who came into contact with the testator at the time the will was made will be crucial, as will expert evidence.
There are an increasing number of claims challenging a will on the basis of testamentary capacity in view of the ageing population and increase in dementia.
In order to challenge a will for undue influence you have to show that there was coercion, manipulation, deception or intimidation by another party to put pressure on the person making the will to influence its content to their advantage at the time the will was made.
Without coercion, the influence applied cannot be termed ‘undue’. Coercion is pressure that overpowers the wishes without convincing the testator’s judgment and is distinguished from mere persuasion. Pressure which overbears the testator’s free judgment, discretion or wishes is enough to amount to coercion.
Coercion may be brutal and directly obvious such as confinement or the threat or use of physical violence against the testator or against someone close to them. Coercion may also be more subtly applied in the last days or hours of life when the testator is least able to resist that pressure. The test courts use to determine if there was undue influence is to decide whether the testator is likely to have thought: ‘this is not my wish but I must do it’.
Lack of Knowledge and Approval
Quite often when a claim is made on either of the above two grounds this is also thrown into the mix. A person must have knowledge of and approve the content of their will. It is possible to contest a will on the basis of a lack of knowledge and approval even if the will appears to be validly executed and the testator had mental capacity, but that on its own is a high hurdle to overcome. It must be shown that the testator was not aware of the content of the will or that there were suspicious circumstances. If the suspicion of the Court is aroused, the Court will need to be satisfied that the will represents the wishes of the deceased. Where a party writes or prepares a will under which he takes a benefit, this will “excite the suspicion of the court” and the court will be vigilant in examining the evidence in support of the will. The extent of the burden depends on the seriousness of the suspicion that has been aroused.
Inheritance Act claims
If you wish to argue that the will or intestacy does not make adequate provision for you because of your financial dependency and the nature of your relationship with the deceased, you could make a claim under the Inheritance (Provision for Family and Dependants) Act 1975.
- The claim should be made within six months of the Grant of Probate being issued; and
- The claimant must meet the criteria for a claimant: this includes a spouse or civil partner, a former spouse or civil partner who has not remarried, a co-habitant who had lived in the deceased’s house for two years prior to their death, children, and any other individual who was financially maintained by the deceased before their death.
There has been a growing proliferation of claims by adult children in recent years causing some concern that testamentary freedoms are being eroded. But, each case is fact specific, and the court has endeavoured to respect the testator’s wishes.
A will can be challenged because of doubts over the legitimacy of the will or a signature. If the will itself or a signature may have been forged, it is open to the challenge.
If you were given assurances or representations by the will maker during their lifetime about inheriting land or property, which you relied on, only to have those promises not honoured in the will, this can be challenged by proprietary estoppel. To succeed you have to show that it would be “unconscionable” for the person who made the assurances or representations to go back on their word and show that you acted to your detriment in reliance on the representations made.
Typically, the most important factor in challenging a will is time. The earlier you are able to begin the process, the better. From the outset, our advice is to get help from a legal expert who specialises in contested wills as quickly as possible. This is such a complicated and difficult field that it’s almost impossible to make any headway without that all-important legal advice. If you feel you have legitimate grounds to challenge a will, whether that’s financial reasons, or there’s doubt that the person made the will with the full understanding of what they were doing, then the first thing your solicitors will do is to request a copy of the will from the executor.
Once that happens, a letter of claim can be filed contesting the will, which will need to detail the reasons why the person is challenging the will in the first place. This is usually for any one of the reasons listed above, although one of the most common reasons is that a dependent such as a child or direct relative feels that the will does not make ‘reasonable provision’ for a spouse or children.
Even if the claim goes to court there is no guarantee that the court will overturn the bequests laid out in the original will. If they find that the will makes adequate provision for a spouse or child, and that the person was in their right mind when they made the will and was not subject to any coercion, then the original will stands.
Even in the “sea change” case of Ilott v Mitson it was held that “unlike some other systems, English law recognises the freedom of individuals to dispose of their assets by will after death in whatever manner they wish.” The Court will need to consider all the facts in each case.
Contesting a will can be a long and complex process that requires a great deal of expertise and experience. Due to the extremely personal nature of the events surrounding inheritance, it’s a process that’s typically both emotionally charged and difficult to approach with the required impartiality. For this reason, we recommend employing the assistance of legal professionals who specialise in wills and contentious probate.
Before making any claims parties are encouraged to exchange information to seek to resolve or at least narrow the issues before legal proceedings are issued. Mediation is a really effective tool in seeking to resolve these disputes, particularly when families are involved as it can help build bridges in family relationships. If however legal proceedings are necessary we can help steer you through this process.
If you need advice in this area, the TSP Dispute Resolution team can help and will advise you on the best course of action. The team can be contacted on 01206 574431 or by email at email@example.com