What are the Six Grounds to Contest a Will?

The passing away of a loved one is tough, even more so when their will causes a family feud. Your initial instinct may be to contest the will if you’re not happy with it. But, before you make any rash decisions, it’s important to understand what the grounds to contest a will are.

Failure to understand the grounds for contesting a will, and making an invalid and aggressive claim can at worst drain both the estate and your own personal finances resulting in nothing for anyone. As a result, our solicitors advise only to contest a will when you’re confident that you can prove beyond any reasonable doubt that you can contest the will.

For more information, please visit our contesting a will page or call one of our solicitors directly on 0203 007 5500.

What are the grounds for contesting a will?

There are generally two methods to contesting a will that include:

1. Casting doubt over whether the will is valid, or
2. The will failing to make ‘reasonable financial provisions’. Potentially for a family member or a person who was financially dependent on the testator (will-maker)

The most common way of contesting a will is to make a challenge based upon its validity. This is to say that there was a reason why the will wasn’t correct. There are five ways of doing this:

1. Lack of knowledge or approval.

While everyone can make a will, not everyone is in a position to write one themselves. If someone else writes a person’s will, the testator must understand and approve the contents of it. This is especially relevant if the person writing the will is also a beneficiary, as they may have altered it for their own gain. There are a few other instances where a court may ask for evidence to prove knowledge and approval. These are:

• If the person was blind or illiterate
• The person was deaf and/or dumb (unable to speak)
• The person was unable to speak or write temporarily (i.e. they were in a coma)
• Where someone other than the person making the will signed it, but at his or her instruction

The burden of proof is in the balance of probabilities. This means you only have to prove it’s likely the person who made the will was affected by a lack of knowledge and approval. However, the extent of the burden depends on the seriousness of the suspicion that has been alleged.

For example, if someone who is blind and deaf signs a will that has been written by the sole beneficiary outlined in the will excluding all their children, this would be very suspicious. Anyone contesting the will would need only to prove to a small degree that the will-maker did not know to whom they were leaving everything to.

In contrast, if someone who is deaf but can see writes their own will and excludes their children, this would be less suspicious. This means anyone contesting the will would need greater proof they didn’t know what they were doing.

Once the suspicion has been proved, the burden of proof shifts to the beneficiaries included in the will, who want it to remain valid, to prove the will-maker knew what they were doing.

2. Irregularity under the Wills Act 1837.

Under section 9 of the Wills Act 1837, no will is valid unless:

1. It is in writing
2. The will-maker signed in a particular manner
3. The will-maker must sign at the end of the will in the presence of two people. The witnesses must be present (in the same room) at the same time, in the presence of the will-maker.

To contest a will on this basis, any evidence that disproves any of the requirements of section 9 (such as forgery, or that the witnesses were not present when the testator signed the will) must be pleaded in any claim particulars brought to the court. All the facts and matters relied on must contain significant detail and evidence.

This is no light matter as only the strongest evidence will invalidate the presumption that a will conforms with the formalities in section 9 of the act. Contesting a will on the grounds that stem from section 9 of the Wills Act can be difficult to prove. Unless there is concrete evidence that the witnesses were not present when the testator signed the will, a claim on these grounds would likely fail.

Amendment to the Wills Act 1837

Section 9 of the Wills Act has however recently been updated because of the COVID-19 pandemic. The updated act has made an amendment to the definition of the word ‘presence’ to accept video conferencing as a form of witnessing. Although in practice this sounds like a safe amendment, it’s predicted to increase the number of people contesting wills. Factors such as mental capacity and undue influence are much harder to identify over video conferencing. To read more about this amendment please visit our page on how COVID-19 has affected the Wills Act 1837.

3. Contest a will by questioning mental capacity.

Testamentary capacity is a legal term that refers to the question of someone’s mental capacity in a given situation. In this case, it refers to whether the will-maker understands its contents and has the mental capacity to make an informed decision. If they lack testamentary capacity when they sign their will, the will is invalid.

Whenever anyone makes a will, they must prove that they:

• Understand the nature of making a will and its effects.
• Understand the extent of the property of which they are disposing.
• Be able to comprehend and appreciate the claims to which they ought to give effect
• Have no disorder of the mind that would lose them any right
• If you can prove the will-maker lacked any of these elements, you may have grounds to contest their will.

4. Undue influence or coercion.

To bring a claim of undue influence you must prove that the person making the will was subject to undue influence. The burden of proof is on the claimants and not those that wish to rely on the valid will.

If you suspect someone has been coerced into signing a will, you should contact our will dispute solicitors before the person who made the will dies.

Undue influence goes beyond forcing someone to sign their will. For example, a widow in poor health may have had the will manipulated by one of their children, listing that child as the beneficiary. If there is proof that the child in question influenced their mother in any way, this would constitute undue influence.

5. Forgery or fraud.

Forgery and fraud allegations typically aim to prove that the person making the will was not the person who signed it, or that one of the witnesses was not present. Anyone making allegations of forgery and fraud must provide credible evidence.

Will fraud is more common than you might think, especially when a testator has a sole beneficiary. People may think they can swap out one copy of a will with one that benefits them, without anyone knowing. Contesting a will on allegations of forgery will typically need to involve handwriting experts to prove that the signature on the will was indeed not of that maker.

6. Change in beneficiary’s gender.

With more and more people undergoing gender reassignment surgery and changing genders, the following scenario is becoming more relevant today.

When a beneficiary changes gender, it can actually affect whether any gifts left to them are valid, depending on the wording of the will and whether they have a gender recognition certificate.

For wills written before 4 April 2005, having a gender recognition certificate will not make a change to the distribution of the property or gifts. The person in question will inherit in accordance with how they are referred to in the will.  For wills written on or after 4 April 2005, the distribution of the property and gifts goes in accordance with the gender of the person after the change, which can lead to alterations in the distribution. However, this mostly depends on the wording of the will.

The Gender Recognition Act of 2004 allows for a person, who is at least 18 years of age, to apply for a gender recognition certificate.

If someone in the will has undergone a gender change, they will need to acquire a gender recognition certificate. The gender recognition certificate is used to verify that the person in question is the same person that was originally named in the will. As long as this certificate is valid, there will be no effect on the gifts going to that person.

Protection for the Trustees:

There is legal protection put in place for trustees who distribute an estate by what gender the person was at the time of writing the will.

If the person wishes to appeal against these circumstances as they may have been adversely affected, then they can make an application to the High Court under Section 18 of the GRA 2004.

Examples:

Let’s say you wrote your will before 4 April 2005. In your will, you named your son as a beneficiary. However, since then, your son has changed their gender and now is a woman. As your will had been written before this date, your son – who is now a woman – would be unaffected in the distribution of the will.

If, however, the same scenario occurs and you wrote your will after 4  April 2005, your son – who now is your daughter – will be treated as such when distributing the contents of your estate. This means that if you had another daughter, both could contest parts of the will where a ‘daughter’ was named as beneficiary.

Importantly, this second scenario depends on the wording of the will. For example, this situation could be avoided if you were to name your children by their full name in the will. However if the son – now a woman – was to also change their name, a gender recognition certificate would be needed.