How do I challenge a Will?
Emotions run high when a loved one passes away. Not only are parties grieving, but a number of questions then cross their mind: who is managing the affairs? What happens to the house? What happens to the money? Who is responsible for all of this? Was there a Will?
The majority of claims brought for challenging a Will arise by aggrieved parties (usually family members) because they discover the contents of the Will is not what they were expecting or it has been recently changed. There may be legitimate reasons for this, or in some cases, something more sinister may have taken place.
There are several grounds to challenge a Will. What is the most applicable will depend on the facts of the case.
- Valid execution
A Will must be validly executed (signed) by the testator. It must be in writing and signed in the presence of two or more witnesses who will then also sign the Will at the same time to verify they witnessed the execution. The testator must have also signed the Will knowing it would make it official. These are requirements under section 9 of the Wills Act 1837and if these are not met, then a Will will not be valid.
A Will will be presumed to have been executed properly provided the statutory provisions have been met. Anyone challenging the Will on this ground will have to provide strong evidence to contradict the presumption.
2. Testamentary capacity
When the testator executes their Will, they must have mental capacity at the time. This means that they must have the mental ability to know what they are doing and who they are leaving their assets to. In particular, they must:
- Understand that they are making a Will;
- Understand how their Estate will be divided up after they die, what property is going to whom, and understand their assets and their value;
- Know who may have claims to their Estate, such as beneficiaries; and
- Not suffer from any mental illness that impacts their ability to understand their Estate and make any decisions.
The starting point on capacity is that the testator had capacity. If you are challenging a Will on the grounds on lack of capacity, you will need to provide medical evidence to prove that the testator lacked capacity when they signed the Will. Copies of the medical records should be obtained and analysed with the appropriate expert.
3. Undue influence
Undue influence takes place when someone applies pressure or coerces the testator to write or change their Will.
There are two categories of undue influence: actual or presumed. Actual undue influence arises when one party applies pressure or coercion, including making unlawful threats (duress). Presumed undue influence arises from a relationship between two people where one party has influence over the other and takes unfair advantage over them.
Undue influence challenges require proof that the prospective Defendant was in a position of trust, stood to benefit from the Will, and that there is no other explanation as to why the Will says what is says. You will need to look at whether changes to the Will were made recently and substantially. If a solicitor was instructed, you may want to enquire if that party was with the testator at the time.
4. Knowledge and approval
A lack of knowledge and approval takes place when the testator had capacity to execute the Will and it was validity executed, but they are not aware of its contents. For example, the Will make be making a gift to someone who the testator did not intend on giving.
The circumstances to challenge a Will under this ground will turn on the facts.
5. Fraud or forgery
Fraud takes place when a someone provides false information to the testator to poison their mind about a beneficiary’s character to cut them out of the Will. It is a very specific ground to challenge a Will and must be supported by evidence.
A forgery takes place when someone has forged a Will and has signed it in the testator’s name. They may have pretended to be the testator and instructed a solicitor or Will writer to prepare a Will, or they may have destroyed a testator’s Will without their permission.
Who can contest a Will?
In theory, anyone can contest a Will provided they can establish they have a sufficient interest. You could be a family member, friend or business associate.
Claims under the Inheritance (Provision for Family and Dependants) Act 1975 have a set criterion of claimants which this article does not cover.
What do I do now?
Contested probate claims will vary and what may be applicable for one, isn’t always applicable for another. The case will fall to the facts and the evidence.
If you believe you have grounds to challenge a Will, it is advisable that you do not wait. Depending on the type of claim you are bringing, there may be a time limit to bring such a claim. If the executor(s) has already obtained a Grant of Probate and has distributed the Will, it may be harder to recover assets.
There are steps you can take to prevent an executor from taking out a Grant of Probate. This will usually give you the time and space to investigate your claim and take legal advice. Speak to our Commercial Litigation team today.
Disclaimer: General Information Provided Only
Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.
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