Contesting a Will

The principal grounds for contesting a Will:
1. A lack of testamentary capacity
2. Undue influence
3. A lack of knowledge and approval
4. Wills Act 1837
5. Forgery and fraud.

We are experienced in contentious probate, challenging wills and making claims against an estate for Reasonable Financial Provision and or Proprietary Estoppel.

Validity

A will must be properly signed and witnessed in order to make it valid.

How the estate is distributed if a will is proved invalid is at the discretion of the court and the court normally distributes the estate in line with the most recent valid version of the will or in default the rules of intestacy.

The validity of a will can be contested if you believe it was created under one or more of following conditions:

A lack of Testamentary Capacity

A person must be of sound mind, memory and understanding. They must:

• Understand what they are doing and what effects those actions will have
• Understand the full extent of what they are distributing
• Be able to appreciate the effects of including or excluding certain people from their will
• Not have a disorder of the mind   

Sufficient knowledge and approval –

• A person must have understood and approved the contents. Knowledge and approval may be presumed when the will is executed correctly and the person had the necessary capacity, but the Court may require evidence if there are any disputes e.g.:
•  The person making the will could not speak or write, or was paralysed
• The person making the will was blind or illiterate
• The will was signed by someone other than the person making the will at his or her instruction
• When there is suspicion validity must be proven.

Undue influence

• • • If someone coerces another into changing their will for the coercer’s benefit, this is undue influence. It can be very hard to prove as the law doesn’t presume that people in a position of power over the person who has died being named in the will is the result of undue influence.
    • Undue influence is acting in any manner that over powers the Testators wishes however persuasion or moral guilt by a family member does not meet this threshold
    • Someone must interfere with the creation of the will and the distribution of assets against the individual’s desire.

A valid will complies with Section 9 if the Wills Act (1837), and must:

• • Be in writing and signed by the person making the will.
  • The person making the will must have signed it with the intention of creating a valid will.
  • Two people must witness the will maker’s signature. Those witnesses must either be present when the will maker signs or, the witness must be told by the will maker, that is his/her signature.
  • The witness then either signs having seen the will maker sign, or signs in the knowledge that it is the will maker’s signature on the document and that the will maker did signed it, with the intention of creating a valid document.

The will is a forgery –

• • • If either the Will or the signature is forged then the will is invalid. This can also include beneficiaries destroying versions of the will for their gain.

Reasonable Financial Provision

• • A Will may be challenged if it fails to make ‘reasonable financial provision’ for a family member or someone who was financially maintained before their death under the Inheritance (Provision for Family and Dependants) (Northern Ireland) Order 1979. Normally, spouses or civil partners, cohabitants of two or more years, children, and people who can show they were being supported financially by the person are those that may make a claim

Proprietary Estoppel 

• Where the Testator has promised someone an interest in a property and upon reliance on that promise they act to their detriment the law provides a remedy to  make good the detriment suffered.  Any Testator must be acutely aware of such recourse if unwisely choosing to discuss the contents of their Will with others.

Costs

• • We seek to resolve disputes in the most time and cost efficient manner.
  • Typically in litigation the court will decide who bears the cost and normally this is the losing party who will pay both sides costs. Costs in these cases can often be met by the estate but this cannot be taken for granted. The Court will look to the cause of the dispute and what is fair and reasonable in the circumstances.
  • When a will is contested, the Executor normally takes a neutral approach so they aren’t responsible for legal costs if there are concerns about how they have handled the estate. This may mean administering the estate is delayed significantly while the parties involved attempt to come to a friendly an amicable resolution or until the matter is resolved by an Order of the Court.

Time Limits

• • It is important to act quickly and to lodge a caveat where validity is challenged.  This will prevent the issue of a Grant of Probate for 6 months.
  • In the case of a claim for reasonable financial provision you must act within 6 months of the date that probate is issued.
  • If you’re challenging the validity of the will, then there is no time limit.
  • It is also important to notify Executors of a potential claim before distribution.

Advice

• We will assess the merits of your case before litigation so that you are fully aware of the potential risk and liability.
• Do not delay, seek immediate legal advice from a solicitor who has the experience to determine whether you have a claim.
• Bring whatever evidence you can to your meeting which may help your case including medical records, documents relating to the drafting of the will and witness statements.

• If you need advice contact us on 02830267134 or at law@lukecurran.co.uk for a free no obligation consultation.