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Contesting a Will

07 July 2021 | Ken McEwan

If you are thinking about challenging the estate of a friend or relative it is important to understand the basic grounds for legitimately contesting a Will.

Specialist inheritance dispute solicitor, Ken McEwan, explains:

Testamentary Capacity

When a person makes a Will, they must prove understanding that:

  • They know what making a Will means
  • They know what assets they possess
  • They know who may expect to receive a claim
  • They know that any mental incapacity will throw their Will into question

If you believe that a person was not aware of any of those four things, then you may have a claim to challenge their capacity when drawing up that will.

Disputing a Will on the grounds of testamentary capacity can be difficult, so it is important to gather evidence to back up your claims such as medical reports or witness statements from medical professionals, solicitors who drew the Will, family members and witness of the Wills signing.

Forgery

If you believe that a Will has been forged then you should challenge it.

Any indications of forgery, fraud or foul play should be reported. The most common type of forgery is a forged name and signature used for personal gain that often leads to criminal convictions.

Having a specialised solicitor by your side in this case is paramount in aiding you in proving whether a Will has been subjected to forgery or foul play.

Lack of valid execution

Paperwork processes are important, and if those processes are not followed then a Will could be declared invalid. If it has not been signed, or witnessed correctly, or several other reasons, all the wishes and intentions in the Will can be challenged.

A claim is appropriate under this ground if there is evidence that the Will has failed to meet one of the conditions under the Wills Act 1837:

  • The Will should be in writing and signed by the testator. If not, then by someone who is authorised to do so in their presence.
  • The testator’s signature must have been intended to give full effect to the Will.
  • At least two witnesses should have been present at the signature of the Will.
  • Both witnesses should either attest or sign the Will or acknowledge the signature in the presence of the testator.

Undue Influence

Undue influence means that the person who wrote the Will was under pressure to make changes to their Will without others knowing, or they were coerced or blackmailed into a different decision than they would want, or they felt unable to make their Will in the way that they had decided.

If you believe that your loved one was pressured during the writing of their Will then may have grounds to contest it. To be successful you must be able to prove ‘actual undue influence’ in court.

Construction and Rectification Claims

If the words within a Will are not clear, then the court themselves may respond to evidence to determine the correct meaning of the words within a Will – this is called a construction claim.

If the testator’s intentions are not clear, often due to a clerical error or because the solicitor who helped prepare the Will misinterpreted their wishes then may have grounds to contest it and even put forward a claim for professional negligence.

Estoppel Claims

If a promise has been made to a person when alive, and then the Will is discovered to directly contradict this, then a Will can be challenged to ensure that the estate is distributed as per the verbal wishes of the deceased – but significant evidence needs to be produced.

Specialist Inheritance Dispute Solicitors

At GL Law our team of specialist solicitors offer expertise in all aspects of inheritance disputes. Whether you are challenging the estate of a friend or relative or responding to a claim brought by somebody else we can guide you through the process. If you are ready to talk to a solicitor, please contact our friendly team for an initial no obligation discussion by calling 0117 906 9400 or email hello@gl.law  

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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