What reasons can you contest a will in England and Wales?

What reasons can you contest a will? Here are the most common grounds for contesting a will in England & Wales:

• Undue influence
• Lack of knowledge and approval
• Lack testamentary capacity
• Incorrect procedure
• Fraud and forgery

Undue influence

Undue influence is behaviour that is designed to put pressure on the testator to make their will in a way that they would not have otherwise intended.

Sometimes there is direct evidence of excessive influence being exerted, but undue influence can also occur as a result of a “drip drip” approach.

The onus is on those who are challenging the will to provide evidence of undue influence. To satisfy a court it is usually necessary to show that there is no other reasonable explanation for the testator’s actions.

The challenger must also prove that the testator made the will against their own volition, and were effectively coerced coerced into making a will they did not wish to make.

These requirements make it difficult to successfully challenge a will on these grounds.

Lack of knowledge and approval

This reason for contesting a will applies when the testator did not ‘know or approve’ the contents of the will that they made.

It can be a difficult ground to succeed on where the will was prepared by a solicitor, as it is the solicitor’s job to make certain that the will-maker fully understands what they are doing. Accordingly successful challenges are more common with homemade wills.

Lack of knowledge and approval is often associated with testators:

• with hearing problems;
• who are visually impaired;
• who are illiterate;
• who were frail or vulnerable, where the will is complex or unusual; and
• who have directed that the will be signed by someone else

Lack of testamentary capacity

This is one of the most common reasons to contest a will.  To succeed with this ground you need to establish that the testator  lacked sufficient mental capacity to understand:

• that they are making a will;
• the nature and extent of their estate; and
• who they owed an obligation towards.

Furthermore the testator must not be suffering from a mental disorder that would ‘poison his affections’.

There are various reasons why someone might have a lack of testamentary capacity, including serious medical conditions.

Incorrect procedure

For a will to be legally valid it must be:

• in writing;
• signed by the testator (or someone else in the testator’s presence and at their direction);
• intended by the testator to be valid; and
• the testator’s signature must be acknowledged in the presence of at least two witnesses.

If these strict requirements are not met then the will is not valid.

Fraud and forgery

This can be a difficult ground to succeed on.

Forgery is particularly difficult to prove and a handwriting expert may be required. However, such reports are often inconclusive.

Fraud involves an intentional deception made for personal gain (such as where someone impersonates the testator) and is very rare in the context of a contested will.

How we can help

If you are wondering, ‘What reasons can you contest a will?’ and need further guidance then call our free legal helpline on 0333 888 0409 or email brief details to us at [email protected]