A guide to contesting a Will

Managing a family member’s affairs following a loss is a challenging task to navigate when grieving. This can be made even more difficult where suspicions and concerns arise about the circumstances of a loved one’s Will. If you have concerns about a family member or loved one’s Will, we have put together this guide to explain the first steps and issues you may want to consider.

There are many ways to dispute the validity of a Will, which will be outlined below. 

Is the Will valid according to the Wills Act 1837?

The Wills Act 1837 governs wills in England & Wales. Section 9 dictates that a Will must be in writing, signed by the testator (the individual who is making a Will) in the presence of two witnesses. Wills that are made without a solicitor or Will writer can run the risk of not complying with the formalities set out in Section 9, thus rendering them invalid. 

Did the testator have ‘testamentary capacity’?

The leading case law that determines if someone had capacity to create a Will (known as ‘testamentary capacity’) can be found in  Banks v Goodfellow [1870] . If you believe your loved one may have had issues with capacity, it is important to consider their medical history or diagnoses, any behavioural changes, the contents of the Will and when the Will was made. These are all factors that the court may consider.

Undue influence

As a general rule, the court will presume that there has been no undue influence. Therefore, there must be evidence of actual coercion and manipulation towards the testator to change or make certain provisions in the Will. Undue influence can be very difficult to establish, as you would need to prove that the testator would not have created their Will in a certain way without external pressure or coercion. If you suspect that this is the case, it is important to seek legal advice regarding your claim. 

Want of Knowledge and Approval

This is when the testator did not properly understand or approve of the contents of their Will. This can be linked to testamentary capacity as there are circumstances where the deceased was too vulnerable or unwell to properly acknowledge or understand the effects of the Will. However, lack of knowledge or approval can also apply in cases where the testator was hard of hearing or visually impaired. 

Rectification following an administrative error

It is possible that a loved one’s wishes are not reflected due to an administrative error or communication error with the will writer. In these circumstances, a claim can be made to rectify the Will under section 20 of the Administration of Justice Act 1982.

It is always best to obtain legal advice from a qualified practitioner before proceeding with contesting a Will. Before meeting with a solicitor, it may be advisable to think about the following:

1. Obtain a copy of the Will you want to dispute, and any Wills made previously (if relevant).
2. Think about the circumstances leading up to the testator’s death.
3. Consider if they made any previous Wills.

If you are successful in disputing the validity of their last Will and there is no previous will in place, the intestacy rule (the set of laws governing when a person dies intestate, i.e without a Will) will follow. It is important consider if this would be a preferable outcome for you and your family.

4. Placing a caveat on the estate. 

This can be lodged with the Probate Registry and prevents probate being issued and estate assets from being distributed. 

5. Consider if the testator’s medical records can be obtained. 

This can be done through a Subject Access Request to a GP or hospital.

How can we help?

If you find yourself in need of legal advice following the death of a loved one, and believe you may have a claim against their estate, our experts will be able to advise and guide you through the process. 

Get in touch with our specialist contentious probate solicitors today. Contact our team by telephone on 0178 232 4454, complete our contact form, or send us an email via info@smithpartnership.co.uk. 

We also have offices across the East Midlands and Staffordshire with contentious probate solicitors, in Burton, Derby, Leicester and Swadlincote.