Grounds For Contesting A Will

Solicitors In Bournemouth, Poole, Christchurch and Wimborne

There are six main grounds for disputing a will:

Mental Capacity

Was the person who made the will (the ‘testator’) fully capable of making decisions?

This is one of the most common ways of challenging a will. Perhaps the testator revised their will in their later years, when their mental faculties were not as sharp as they were when they were younger.

The testator may have been suffering from the effects of dementia when they changed their last will and testament. The will could be declared invalid if it can be proved they lacked capacity.

The case law that defines mental capacity for the purposes of making a will is Banks v Goodfellow 1870. It stipulates that the testator must:

  • be aware of the nature of their actions - they must understand that they are making a will
  • know the full extent of the property they are bequeathing
  • understand and appreciate that claims may be made as a result of the contents of their will.

It is important to note that the Banks v Goodfellow definition differs from the Mental Capacity Act 2005 definition used by the Court of Protection in cases involving matters such as powers of attorney and deputyships.

For legal advice on contesting wills, contact Coles Miller Partner Simon Steele-Williams, 01202 355697.

For help with the Court of Protection and powers of attorney, contact Coles Miller Partner Stuart Bradford, 01202 355695.

Undue Influence

This is also one of the more typical reasons for disputing a will. The concern is that someone has forced or tricked the testator into changing their will.

It can also be used as a challenge when it is felt that a person has been overly persuasive and exerted excessive influence over the testator when they were drafting their will.

Cases of undue influence can involve second or subsequent marriages - particularly if there is a significant age gap or the new spouse married the testator shortly before their death.

Undue influence cases can also involve distant relatives or past friends who suddenly and re-enter the life of the testator at a financially ‘convenient’ time.

Paid or volunteer carers who receive a large bequest despite knowing the testator only a short time can also be viewed with suspicion by family members who had been expecting to inherit.

Claims based on undue influence require a high burden of proof - to the extent that there could be no other reasonable explanation for a testator’s decision to suddenly change their will.

Lack Of Knowledge And Approval

A will must be made with the full knowledge and approval of the testator if it is to be valid.

Wills that do not fulfil these criteria may be open to challenge. Perhaps someone has drafted the will on behalf of the testator and tricked them into signing it without their full understanding of the ramifications.

Suspicions will be significantly higher if the person who drew up the will for the testator also happens to receive a large bequest in it.

Challenges of this type may be easier to prove than those relating to mental capacity or undue influence.

Execution

A will is not valid if it is not executed correctly. According to Section 9 of the Wills Act 1837, a will must be in writing and signed by the testator with the intention of making it legally binding.

Two witnesses - both present at the same time - must also sign the will or attest to its validity.

If the testator is unable to write, someone else can sign the will on their behalf but only in their presence and only if directed by them.

Disputes relating to the execution of a will often centre on the witnesses. It is crucially important that both witnesses were there at the time the testator signed the will.

A will can be declared invalid if it can be proved that one or both witnesses could not possibly have been there and in reality either signed it later or ahead of the testator.

Construction And Rectification Claims

A will can be contested if it misrepresents the testator’s wishes because it has been drafted negligently.

Clerical errors are one possible reason but this type of claim can also cover wills which have been worded badly, so that the terms of the bequests are unclear.

Section 20 of the Administration of Justice Act 1982 is the key legislation for will rectification claims.

Forgery Of Wills

Forgery of wills is extremely rare but that does not mean it does not take place. Vigilance is vital to prevent cases from going undetected.

In a case that went before Worcester Crown Court in February 2015, a woman and her ex-husband received suspended prison sentences after they both pleaded guilty to forging her partner’s will.

The family of the deceased became suspicious after some of his possessions were advertised for sale on eBay.

Read this Coles Miller news article to find out more about ways to spot a forged will.

Get Expert Advice From Our Contested Wills Solicitors

Are you suspicious about the terms of a will? Are you concerned that your will may be challenged and need legal advice on how to make it more robust?

Get expert help from our contested wills specialist, Coles Miller Partner Simon Steele-Williams, 01202 355697.

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