When a loved one dies, life is tough enough. It becomes even harder when their Will causes a family feud.
Disputes over Wills are becoming more common, but that doesn’t mean you should enter into this lightly. The process can be both stressful and expensive so before you take the first step, let’s make sure you have reasonable grounds.
In this article, we’re looking at the 5 most common reasons to contest a Will.
1. Lack of testamentary capacity
To challenge a Will on this basis, you have to prove that the Will-maker was unable to understand its contents or make an informed decision.
If someone lacks testamentary capacity when they sign their Will, it’s invalid.
The question is, how do you define testamentary capacity? In 1870, the case Banks v Goodfellow established that anyone who signs a Will must:
• Understand that they are making a Will
• Understand the effect of that Will
• Understand the extent, value and nature of their estate
• Understand the consequences of excluding and including people in their Will
• Have no disorder of the mind which would (forgive the archaic language) `poison his affections, pervert his sense of right, or his Will in disposing of his property’
If you think any of those apply, it could be a good starting point, although you’ll have to produce evidence — medical records, psychiatric assessments, witness testimonies and so on.
2. The Will was not properly executed
Under the Wills Act 1837, a valid Will must be:
• In writing
• Signed by the person making the Will (the testator) or someone in the testator’s presence and at their direction
• Signed in the presence of two witnesses who are present at the same time. They can’t be beneficiaries, or married to a beneficiary
• Each witness must attest and sign the Will, or acknowledge the signature, in the presence of the testator
• The testator must intend, when signing, for the Will to be valid
Bear in mind that there’s a legal assumption that a Will is valid. Proving otherwise can be difficult. You’ll need to produce compelling evidence.
3. Lack of knowledge or approval
Anyone can make a Will, but not everyone can write it themselves — or, indeed, read it.
In some instances, the court may ask for evidence that the deceased properly understood and approved the contents of their Will. For example, if they were:
• Hard of hearing, or had a speech impediment
• Blind or visually impaired
• Unable to read or write
• Frail, unwell or vulnerable
• Unable to sign the Will themselves and directed someone else to sign it
In these cases, the burden of proof comes down to a balance of probabilities. You only have to prove that it’s likely the Will-maker had a lack of knowledge or approval.
The amount of proof depends on the suspiciousness of the circumstances.
For example, if a deaf and blind person signed a Will written by the sole beneficiary, and it excludes all their children, this would be highly suspicious. The burden of proof would be small.
If someone as deaf, on the other hand, it would be less suspicious. They could see what they were signing, so the burden of proof would be higher.
4. Undue influence or coercion
Pursue this one with caution. For a claim to succeed, the court has to be satisfied that undue influence or coercion is the only reasonable explanation for the Will-writer’s actions.
Coercion nearly always happens behind closed doors — and when the chief witness, the deceased, is no longer around to testify, it can be extremely difficult to prove.
If you have any suspicions about coercion while someone is still alive, we advise you to seek advice as soon as possible.
5. Forgery and fraud
With forgery, you’ll be aiming to prove that the person who made the Will isn’t the person who signed it.
If a Will has been forged, it’s obviously invalid — although you’ll need a conclusive report from a handwriting expert.
There are many forms of Will fraud. The most common is when someone’s last valid Will is destroyed or hidden, then replaced with an earlier Will which has one beneficiary — the fraudster.
Despite what you see on TV crime dramas, fraud cases are relatively rare. There’s a good reason for this:
The burden of proof is akin to that in criminal cases. You must prove beyond reasonable doubt that fraud has been committed — and as with coercion, these things tend to happen in secret.
Conclusion
You’ll have gathered by now that contesting a Will is a horrible process for those left behind.
To avoid putting your loved ones in this situation, get in touch with us. As professional Will writers, we provide expert advice on how to protect your Will from future legal challenges.