There are often misunderstandings as to the grounds for challenging a will. Some people have a certain expectation that they will inherit from close family members. Others believe that being the “next of kin” of the deceased gives then an automatic right to inherit their estate. Some people have a perception that a will dispute claim can be started simply because they feel a sense of injustice in being excluded from a will. 

The starting point in will dispute cases is the principal of testamentary freedom which basically means that a person is free to leave their estate to whoever they wish. However, if a person can prove one of the grounds for contesting a will in Court, the disputed will would be declared invalid.

It is important for clients to carefully think through the consequence of contesting a will. If a challenge to the will is successful and there was an earlier valid will, the estate will be distributed in accordance with that earlier will. If there is no earlier will, the estate will be distributed in accordance with the Intestacy Rules.  It could well be that the client gets less from the estate by challenging the will. Both scenarios should be considered carefully before proceeding with a will dispute.

What are the grounds for challenging a will?

• Lack of testamentary capacity;
• Lack of knowledge and approval;
• Undue influence;
• Invalid execution; and
• Forgery or fraud

Lack of testamentary capacity

In order for a testator to make a valid will, they must have the required testamentary capacity. The legal test for testamentary capacity is laid out in the longstanding decision in Banks v Goodfellow (1870) LR5 QB549 which confirms that the testator has testamentary capacity if they:

• Understand that they are making a will and the effect of that will;
• Know the nature and value of their estate;
• Understand the claims to which they ought to give effect (i.e. understanding the consequences of including/excluding certain people in their will); and
• That they are not suffering from any disorder of the mind that would poison their affections, pervert their sense of right, or prevent the exercise of their natural faculties.

Lack of knowledge and approval

The testator must have knowledge of, and approve the contents of their will. In order to successfully dispute a will on this ground, it must be proved that the testator was either not aware of the contents of their will or that the circumstances in which the will was prepared and executed were suspicious (so as to arouse or excite the suspicion of the Court). Examples of suspicious circumstances could include where there was a significant delay in the will coming to light after the testator’s death, drastic changes to previous wills without explanation, errors and spelling mistakes in the will, or using witnesses that are not independent.

Undue influence

Undue influence basically means that a testator has been unlawfully pressured into making a will by coercion or by fraud.

The party relying upon this ground would need to prove that the testator was influenced to the point that their free will was completely oppressed. Simply suggesting to a testator that they make a certain provision in their will is lawful and is certainly not enough to prove undue influence.

The testator’s physical and mental strength are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a sick or vulnerable person may be more easily overborne than someone of stronger mind.

Invalid execution

When it comes to the execution of a will, there are strict rules that must be adhered to if the will is to be valid. Wills must be signed and witnessed correctly.

More and more people are looking to save money and many are not using solicitors or other suitably qualified professionals to draft their wills in a bid to save money. Accordingly, there has been an increase in recent years of wills that have not been validly executed. This leads to uncertainty and in many cases can result in a will dispute.

Forgery or fraud

Relying solely on fraud as a ground to challenge a will is very difficult because the deceased would normally be the only witness to the relevant facts.

In order to prove that a will has been forged, examples of the deceased’s signature from around the time as the disputed will need to be produced.  A handwriting expert will be involved to confirm whether the signature is genuine or a forgery.

Who can contest a will?

A person who wants to contest a will would need to be someone who stands to benefit in the event that the disputed will was declared invalid. This means that they would either be a named beneficiary in an earlier valid will executed by the testator or a beneficiary by virtue of the intestacy rules.

If you believe that you have grounds to challenge a will or if you are in a position where you need to defend a challenge to a will or you would like to discuss a probate dispute or inheritance dispute,  please call 01384 410410 and ask to speak to Liam Owen or Susan Ford. Alternatively, you can e-mail us at contentiousprobate@georgegreen.co.uk providing a brief summary of the issues you wish to discuss with us, along with your contact details and we will contact you if we think we may be able to help.