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Contesting a Will


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Contesting a Will

There’s a famous court of appeal battle between estranged daughter Heather Ilott and her mother Melita Jackson, where Ilott successfully contested her mother’s. Jackson’s will left everything to three animal charities, yet in the end, Ilott was awarded £164,000 of the £500,000 estate. The court ruling on the will shows that it is possible to contest a will. While your challenge may not be as high-profile, our will dispute solicitors in Brighton and Hove can help with contesting a will on your behalf.

What Is Contesting a Will?

When a person makes a will, they may inadvertently or deliberately miss someone out who would typically be expected to be included, for example a child or their spouse. If the person who has been excluded feels they have a right to a stake in the deceased’s estate, they can choose to contest the will and its validity.

However, when challenging a will, it’s important to bear in mind two pieces of law: the ‘Wills Act’, which governs how you can contest a will, and the ‘Inheritance Act’ which determines who can benefit from someone’s estate. If you don’t stand to gain anything from someone’s will, our will dispute solicitors would always encourage you to consider whether you really want to contest their will.

The people who can challenge the way an estate is split under the Inheritance Act include:

  • Direct family members such as children, parents and grandchildren
  • Spouses, even if they were separated (but not divorced)
  • Beneficiaries who were named in any previous will
  • Anyone who was financially dependent on the deceased
  • Anyone who the deceased owed money to

However, when contesting a will, you must ensure that you have valid grounds under.

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’ for a family member or a person who was financially dependent on the testator before they died

The most common way of contesting a will is to challenge its validity, which is to say that there was a reason why the will wasn’t correct. There are 5 ways of doing this:

1. Contesting on Grounds of a Lack of Knowledge and Approval

The person making the will must understand and approve the contents of the will. This is especially relevant if the person who wrote the will is also a beneficiary of said will as they may have included alterations that were not originally intended. There are a few other instances where a court may ask for evidence to prove knowledge and approval. These are:

  • Where the person was blind or illiterate
  • The person was deaf and/or dumb
  • The person could not speak and write, or was paralysed i.e. in hospital comatised
  • In the rare occassion where the will was signed by someone other than the person making the will but at his or her instruction

The burden of proof is in the balance of probabilities, which means you only have to prove it’s likely the person making 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 benificiaries included in the will, who want it to remain valid, to prove the will maker knew what they were doing.

2. Contesting on Grounds of Insufficient Testamentary Capacity

Testamentary capacity is a legal term used to describe whether the person making the will understands its contents and has the mental capacity to decide upon what is included. If they lack testamentary capacity when they sign their will then the will is invalid.

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

  • Understand the nature of making a will and its effects, and
  • Understand the extent of the property of which they are disposing, and
  • Be able to comprehend and appreciate the claims to which they ought to give effect, and
  • Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will

If you can prove the will maker lacked any of these elements, you may have grounds to contest their will.

3. Contesting on Grounds of Undue influence or Coercion

To bring a claim of undue influence you must prove that the person making the valid 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.

These claims can be complicated from an evidence point. 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 could be manipulated by one of their children into making a will solely naming that child as the beneficiary in the run up to their death. If it can be proved that the child in question influenced their mother in any way, for example filling their head with lies about the other siblings, to the point that she excludes them from her will, this would constitute undue influence.

4. Contesting on Grounds of Forgery and Fraud

Forgery and fraud allegations typically aim to prove that the will was not signed by the person making the will, or that one of the witnesses was not present. All allegations of forgery and fraud must be supported with credible evidence. Britton and Time Solicitors successfully contested a will in a claim of fraud which established a beneficiary falsely signed the deceased’s will, for the purpose of making him revoke a gift made to another person in the will.

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 that of the maker.

5. Contesting on Grounds of an Irregularity Under the Wills Act 1837

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

  • it is in writing and
  • was signed in a particular manner

This means that the will maker must sign at the end of the will and their signature must be witnessed in the presence of two or more witnesses. The witnesses must be present (in the same room) at the same time and must also sign the will in the presence of the will maker.

A will can be proved valid by showing that the provisions of section 9 were complied with. To contest a will on this basis, any evidence that disproves any of the requirements of the 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 be given in detail and supported by evidence. 

This is no light matter as only the strongest evidence will invalidate the presumption that a will was properly signed and conforms with the formalities in section 9 of the act. Contesting a will on 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.

How Can Britton and Time Solicitors Help You Contest a Will?

If you decide to contest a will, our will dispute solicitors can help by:

  • Requesting the will file from the solicitors that drafted the will
  • Locate and contact any of the witness named in the will
  • Conduct an investigation with the deceased’s neighbours to establish other relevant circumstances
  • Obtain medical records to establish capacity
  • Search the National Will Register for any other will that may be relevant
  • Contact the Office of the Public Guardian to check records relating to the deceased
  • Drafting the claim and particulars to ensure all the issues are before the court to consider
  • Represent you in court

If you want to contest a will or would like more advice on contesting a will, then contact us or call us on 01273 726951.

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