Losing someone close to you is difficult enough without also having concerns about their will. But sometimes a will raises serious questions - particularly if it was made during a period of illness, shortly before death, or represents a sudden change in wishes, or there are concerns about the circumstances in which it was signed.
Simply disagreeing with a will is not enough to raise a viable legal challenge to a will. There must usually be a recognised legal reason for questioning its validity.
What Is lack of testamentary capacity?
For a Will to be valid, the person making it (the testator) must have had the required capacity at the time, known as ‘testamentary capacity’.
Broadly, they must have capacity to understand that they were making a will and its effect, the nature and extent of their estate, and the people who might reasonably expect to benefit.
Concerns can also arise where someone had a condition affecting the functioning or their mind or brain such as dementia, suffered a serious illness or injury or experienced significant cognitive decline. However, a medical diagnosis of a condition does not automatically mean they lacked capacity.
Relevant evidence could include medical records, the solicitor's file relating to the preparation of a will, witness statements, previous wills and expert medical evidence.
What Is undue influence?
A will can potentially be challenged if someone was pressured or coerced into making decisions that did not genuinely reflect their wishes.
Undue influence is more than ordinary persuasion. The issue is whether the pressure was so significant that the testator's free will was overborne.
Possible warning signs include a sudden unexplained change to a will, isolation from family and friends, increased dependency on a particular person, or that person becoming heavily involved in arranging the new will and benefitting more than anticipated.
Knowledge and approval
Challenging a Will could also arise where a person must know and approve the contents of their will.
Questions may arise if they signed a document without understanding what it contained, believed it said something different, or another person played an unusually significant role in its preparation, possibly even tricking the testator into signing a will believing it to be something else.
This is known as lack of knowledge and approval and can provide grounds for
What happens if a Will was forged or fraudulent?
A fraudulent will could involve creating a false document, altering a genuine Will or deliberately deceiving the testator.
Forgery could include falsifying the testator's signature or creating a document purporting to be their will.
These are serious allegations and require strong evidence. Investigations could involve examining the original will, handwriting evidence, witness statements or even forensic expert reports to determine whether a will is a true and final will made by a testator.
What if the Will was not properly witnessed?
There are strict rules governing how a will must be signed and witnessed.
Generally, it must be in writing and signed by the testator - or someone acting at their direction - with the intention of giving effect to the will. The signature must be made or acknowledged in the presence of two witnesses who are present at the same time, who must then also attest and sign the will.
If these requirements were not followed correctly the will may be invalid.
A handwritten or homemade will can still be legally valid, but it must satisfy the necessary legal requirements, or it could be challenged on the same grounds as any other Will.
Can an old Will be challenged by a newer Will?
The existence of a prior will can be highly relevant when a more recent will is disputed.
Usually, a will revokes any earlier wills, but if the most recent will is successfully challenged and found to be invalid, it may be necessary to establish whether there was an earlier valid will which should govern the administration of an estate.
Previous wills can also be used in evidence when investigating a dispute. For example, an unexpected change in beneficiaries shortly before death may prompt questions about the circumstances in which the will was made and its validity.
That does not mean the newer will is automatically invalid. People are entitled to change their minds and their wills. But the circumstances may warrant further investigation.
Can a handwritten Will be challenged?
Yes. A will does not have to be professionally typed or prepared by a solicitor to be valid. A handwritten will can potentially be legally valid, provided it complies with the necessary requirements.
However, handwritten or homemade wills can sometimes create additional uncertainty. There may be questions over the wording, the signature, witnessing, amendments or whether the person intended the document to operate as their final will.
A handwritten will can also be challenged on any of the usual grounds including lack of capacity, undue influence, lack of knowledge and approval, fraud or forgery.
What If a Will has been destroyed or cannot be found?
A person can revoke their own will by deliberately destroying it with the intention of doing so.
But disputes can arise when an original Will cannot be found, or there are concerns that someone else has destroyed, removed or concealed it.
Evidence about where the will was kept, who had access to it, what the deceased said about it and whether copies exist may all be important. The overriding point is whether the testator had the necessary intention to revoke their will.
What should you do if you want to contest a Will?
If you have concerns about the validity of a will, seek legal advice as soon as possible.
It may be necessary to take steps to prevent a Grant of Probate being issued while the circumstances are investigated. Any relevant evidence such as previous Wills, emails, messages, medical information and details of potential witnesses should also be preserved.
It is particularly important to obtain advice before making serious allegations of fraud, forgery or undue influence.
How Coles Miller can help
Contested Wills can be legally complex and emotionally difficult, particularly when disagreements arise between family members.
Coles Miller's experienced Disputes & Litigation team can investigate concerns about a Will and advise whether there may be grounds to challenge it, including:
Where possible, we will seek to resolve disputes through negotiation or mediation. Where court proceedings are necessary, we can guide you through the process and represent your interests.
If you are concerned about the validity of a Will, contact Graham McLean and the Disputes & Litigation team at Coles Miller Solicitors for specialist advice.