5 Common Grounds for Contesting a Will

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In the wake of a bereavement, going through an inheritance dispute is the last thing that any party will want. This can be a very stressful, emotionally upsetting and confusing affair for many people. Regardless of whether the dispute concerns the validity of a Will, actions against Trustees, questionable lifetime gifts or any other related matter, our Contentious Probate team can help you. 

In this article, we’ll discuss five common grounds for contesting a Will and how a solicitor can assist you in this process.

What Is Contentious Probate?

Any disputes that arise whilst administering the estate of a deceased loved one can be referred to as contentious probate. The reasons why an estate’s Beneficiaries may not agree are varied, and Wills and probate solicitors have seen a rise in the number of disputes in relation to Trusts and Wills.

Disputes regarding the interpretation or validity of a Will are one of the most common causes of this. Disagreement regarding the manner in which the person’s estate is to be distributed or administered is another common cause.

Essentially, contentious probate is often the result of a party questioning the validity of a certain aspect of the Will. This validity could be brought into question for a variety of reasons, for example if there is reason to believe that the document has been misinterpreted or forged, or the testator was coerced into making their Will.

Contentious probate is not always straightforward. If a Will is believed to fail in providing optimal provision for those involved, then a Deed of Variation can be used. This will allow Beneficiaries to make necessary alterations to the distribution of the estate detailed in the Will.

Beneficiaries may wish to use a Deed of Variation for a variety of reasons, however, common motivations include maximising the estate’s efficiency with regards to Inheritance Tax or redirecting assets to a more vulnerable Beneficiary.

On What Grounds Can You Contest a Will?

The grounds for contesting a Will vary widely, and the process of doing so can be complex.

However, some of the most common grounds include:

1. Testamentary Capacity

Lack of testamentary capacity can be a particularly sensitive and complicated circumstance in which Wills may be contested. If you believe that the person devising the Will was not of sound mind, then you could contest the validity of the document on these grounds.

In order for a valid Will to be devised, a person must be fully understanding of the fact they are making a Will and the implications it will have. They must also be well aware of the value of their estate and be able to comprehend the consequences of including or excluding certain individuals within the Will.

Proving whether or not a person has testamentary capacity can be difficult in some circumstances, including cases where a person suffers from a disorder or illness affecting the mind.

2. Forgery

Forgery is a far less ambiguous ground on which to contest a Will, and it may be called upon if there is reason to believe that the Will was forged or fraudulently drafted. Forging an individual’s name and/or signature for personal gain is one of the most common types of forgery relating to Wills and can often lead to criminal sanctions. In such a case, contacting a legal professional specialising in Wills and probate can be instrumental in proving that a Will was drafted as a result of forgery or foul play.

3. Lack of Proper Formalities

Also referred to as ‘lack of due execution’ or ‘lack of valid execution’, this ground is appropriate for a claim in which a Will fails to meet one of the conditions set out in section 9 of the Wills Act 1837:

  • The Will must be in writing and signed by the testator. If it has not been signed by the testator, then it must have been signed by someone else who was authorised to do so in their presence.
  • The testator's signature must have been intended to give full effect to the Will.
  • At least two witnesses, present together, must have witnessed the testator's signature or have had it acknowledged by the testator.
  • Both of these witnesses must either attest and sign the Will or acknowledge the signature in the presence of the testator themself.

4. Construction and Rectification Claims

Grounds for a construction claim are appropriate if the words used within a Will are ambiguous or not entirely clear. In such a case, the court themselves will respond to evidence to determine the meaning of the words within the Will.

A rectification claim can be lodged when the testator’s intentions are unclear within the Will, typically due to a clerical error or because the professional who prepared the Will misinterpreted the testator’s wishes. This type of claim provides clear grounds for contesting a Will and can be pursued prior to making a claim for professional negligence.

5. Undue Influence

If you believe that an individual has created or signed a Will as a result of coercion by someone else with ill intentions, then you may be able to lodge a claim on the grounds of undue influence.

For the claim to be successful, you will be required to prove ‘actual undue influence’ in court.

The law will not always automatically intervene in these cases. Any evidence should be strong enough to ensure that there would otherwise be no other reasonable circumstance in which the Will would have been made. For example, if an individual that lacks close ties with the testator was bequeathed a substantial proportion of the estate, then you may have grounds to contest this.

Considering Contesting a Will?

If you're considering contesting a Will, then it is vital that you act as soon as possible. In certain circumstances, time limits will apply with regard to when you can make a probate claim and ultimately contest a Will.

Individuals wishing to make a claim for reasonable financial provision in line with the Inheritance (Provision for Family and Dependants) Act 1975 will usually be subject to a time limit of six months. This timit limit will start from the date at which the Grant of Probate or Letters of Administration was issued. The sooner you act, the better your chance of achieving a positive outcome. 

Contact Our Contentious Probate Solicitors

Our legal team can help advise you on contesting a Will and achieve the justice you're looking for. Get in touch with us via info@smithpartnership.co.uk, call us on 0330 123 1229 or complete our contact form.

Author: 
Jak Ward

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