How to challenge a Will
In order to challenge a will firstly the will must be valid. You cannot contest a will simply because you are not satisfied with its contents however you can challenge the validity of the will.
In order for the will to be valid it must be signed by the testator (the person that has made the will) in the presence of two witnesses.
The testator must have been of sound mind and fully aware of the meaning of the document at the time the will was made. There must not be any coercion by another person when the testator had made their will.
The types and reasons for contesting a Will:
Lack of valid/due execution
A Will is invalid if it fails to comply with the requirements set out in s.9 Wills Act 1837.
For example, a Will must be in writing and signed by the testator or signed by someone else in their presence and by their direction.
In order to show a person is under actual influence you must prove that the person was influenced or under duress when the person made the Will.
To prove undue influence there must be no other reasonable justification to explain the terms of the Will.
If you believe that a person has made a Will due to an act of coercion by another person or this may be your current situation we have dispute Solicitors that can help.
Lack of ‘testamentary capacity’
For a person to create a valid Will they must be of sound mind. Banks v Goodfellow 1870 states that for a Will to be valid a person must:
- Know the nature and value of their estate,
- The consequences of including and excluding certain people under their Will,
- Understand the intention they are making a Will and the effect of the Will,
- Not be suffering from any ‘disorder of mind’ which could influence their decisions. For example where a testator made a gift, which had they not been suffering from the disorder, they would have not made the gift.
Lack of knowledge and approval
In order for Will to be valid a person must know and approve the content of their Will.
You can contest a Will where a person has lack of approval and knowledge even if the Will is executed correctly and the testator had the mental capacity to create a valid Will.
For instance where there is a gift in the Will to a person who helped prepare the gift, this can be seen as being invalid.
Fraudulent wills and forged wills
You can contest a Will where an act of fraud or forgery has taken place.
For example where Peter prepares a will in Mary’s name and forges Mary’s signature so that her estate is left to him on her death, the will would be invalid due to an act of forgery.
An example of fraud would be where Mary intends to benefit Peter in her will but Tracey lies to her by stating that Peter has stolen money, and then Mary reacts by removing Peter from the will, the will could be invalid due to Tracey’s fraud.
Claims for financial maintenance
A claim for financial maintenance can be made against the estate if it can be shown that the person making the claim was financially dependent upon the Deceased before the person died.
There is a very strict time limit involved, which is 6 months from the date of the Grant of Probate. In order to claim you must fall into one of the categories of the Claimant listed under the Inheritance Act.
At Will.Claims & Josiah Hincks Solicitors we have specialist solicitors to resolve disputes either through Court litigation or by using alternative forms of dispute resolution; for example mediation and Alternative Dispute Resolution (ADR). ADR is advantageous to our contentious probate clients as it provides a great opportunity to restore family relations once the dispute has been resolved. ADR enables you to grieve for your loved one with less distress.
We will always work closely with you ensuring to reach a fair and practical solution in your contested dispute.
Contact our expert contested probate solicitors now on 0116 255 18 11 or fill in the form to the right for a call back.