Contesting a Will in court - part 2. When is it a good idea?
In last month’s blog, we looked at the occasional unpleasant scenario when you’ve been inexplicably left out of a relative’s Will. We examined a variety of circumstances where contesting such a Will would be fruitless; where there’s no legal basis for a challenge - a waste of your time and money. This month, we’ll look at those instances in which a challenge to a Will might have a reasonable chance of success.
Then, in our final blog on this topic next month, we’ll explore the extra checks we make when drafting a Will - ensuring we protect our client from having their wishes challenged in court.
Here are six areas which might provide grounds for successfully contesting a will.
- Lack of valid execution
- Testamentary capacity
- Undue influence
- Fraudulent or forged wills
- Lack of knowledge and approval
- Rectification and construction claims
Let’s look at each in detail.
1. Lack of valid execution
sometimes known as ‘lack of due execution’
For a Will to be valid, it must meet all of the following requirements (The ‘testator’ is the person making the Will’) -
- The Will must be in writing and signed by the testator or signed by someone else in their presence, under their direction.
- It must be clear that, in signing the Will, the testator intended it to be put into effect.
- The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the time of the testator’s signing of the Will.
- Each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness.
2. Testamentary capacity
When someone makes a valid Will, they must be of sound mind. This means that they must
- understand that they are making a will and the effect of that will
- be fully aware of the nature and value of their estate
- understand the consequences of including and excluding certain people under the will
- not be suffering from any ‘disorder of mind’ which might influence their views. An example might be the testator making gifts which they wouldn’t have made if they hadn’t been suffering from that disorder.
3. Undue Influence
This, of course, might be linked to Testamentary Capacity. It’s when someone loses their mental capacity (perhaps due to dementia) that they might become vulnerable to malicious influence. To prove that a person has been unduly influenced, coerced or under duress when making a will you have to demonstrate 'actual undue influence'. The evidence must be strong; clearly showing that there is no other reasonable theory to explain the terms of the will.
4. Fraud or Forgery
If you think fraud or forgery has taken place with a Will, then t’s definitely worth contesting it.
Forgery - David prepares a Will in Susan’s name and forges her signature so that her estate is left to him on her death. Clearly, the Will would be invalid.
Fraud - Susan intends to benefit David in her Will. Sheila lies to her, claiming that David has stolen money. Susan then reacts by removing David from her Will.
5. Lack of knowledge and approval
For a Will to be valid, the testator must know that they are signing a Will. They must also have knowledge of, and approve of, its contents.
Even if a Will appears to be validly executed and the testator had mental capacity, you can contest it on the basis of a lack of knowledge and approval. For example, you might be able to show that the testator was unaware of the Will’s content or that it was drawn up in suspicious circumstances. For example, did the Will contain a substantial gift to the person who helped prepare it?
6. Rectification and Construction claims
A will may be rectified where it fails to carry out the testator’s intentions. This could be due to a clerical error or a genuine misunderstanding. For example, the person preparing the Will may have genuinely misunderstood the testator’s instructions.
You might bring a construction claim if the words in a Will are either unclear or ambiguous. In this case, the court is asked to determine the meaning of the words used in the will.
To conclude ...
Losing a close relative can, of course, be most distressing. But any such feelings can be compounded and confused if you learn that your reasonable expectation of inheritance hasn’t come to fruition. Before deciding on whether or not to pursue the matter, make sure you’re absolutely clear about your grounds for making a challenge. Speak to an expert for specialist advice.
Meanwhile - look out for our next article, where we look at the extra checks we make when drafting a Will - making sure we protect you from having your wishes challenged in court.
Contact - Tim Mullock on 01234 713021.
Email - Tim.Mullock@AdeptAssetSolutions.co.uk