We offer a free 30 minute consultation with a specialist solicitor on any contested will case.
Lack of mental capacity
It is becoming increasingly common for people to contest a will on the grounds of mental capacity. There are a variety of reasons for this, including the rising number of cases of dementia in an aging population.
For a will to be valid the maker of the will (known by lawyers as the testator – or testatrix if it is a woman) must have the required mental capacity. People often refer to this as, “being of sound mind”. Illness can give rise to incapacity, but if someone is mentally impaired it does not necessarily follow that they will automatically lack mental capacity and be unable to execute a valid will.
For instance, the existence of Alzheimer’s, or similar degenerative conditions, does not necessarily mean that the person lacks mental capacity and that contesting their will is likely to be plain sailing. Each case must be considered on its own specific facts.
In most contested will cases involving mental capacity, some form of medical evidence will be required. When preparing a will for an elderly or unwell person, solicitors should take the precaution of obtaining a note from a doctor to confirm that the testator has testamentary capacity. This is sometimes referred to as “the golden rule”.
However, the golden rule is not always followed, so if a contested will dispute subsequently arises the parties and their lawyers may have to obtain evidence of the testator’s likely state of mind when the will was executed. This can often be several years after the event, so it is important for specialist solicitors (who are experienced in contested wills and disputed wills) to be involved to ensure that correct evidence is obtained.
If it can be proved that the testator lacked mental capacity when the will was made, then it is likely that a court will declare it to be invalid. In this case any earlier will becomes operative, or, if there is no earlier will, the intestacy rules apply.
Where you already have good evidence of mental incapacity then our Legal 500 recommended solicitors may be able to assist with your case on a No Win, No Fee basis. If investigatory work needs to be carried out on a privately funded basis and you are concerned about not allowing the legal costs to escalate beyond your budget then we will be happy to set a fixed fee limit on the costs being incurred.
If you think you have a case to contest a will on the grounds of mental capacity and wish to discuss funding options, contact one of our specialist solicitors now for a free case assessment by calling 0333 888 0409 or sending us an email.
Lack of knowledge and approval
For a will to be valid the maker of the will must have understood and approved its contents. Lawyers call this requirement ‘knowledge and approval’.
The presumption of knowledge and approval
Where a will is properly executed there is a legal presumption that the maker of the will had knowledge of the contents of the will and approved those contents. There are some exceptions to this general presumption which our lawyers can advise on if a claim is made.
Suspicion of lack of knowledge and approval
If there is a suspicion that the maker of the will lacked ‘knowledge and approval’ then the validity of the will can be challenged on that basis. If it can be proved that the testator did not have ‘knowledge and approval then the will can be declared invalid. This means that their estate will then be dealt with in accordance with the terms of their previous will. If there is no previous will, then the intestacy rules will apply.
Proving lack of knowledge and approval.
It is generally more difficult to contest a will on the grounds of ‘lack of knowledge and approval’ where a solicitor was involved in preparing the will. When a will is signed the solicitor will usually read through the will with the testator to ensure they understand it and are happy with the contents. However this isn’t always the case.
If only part of the will is read to the testator, it is possible for a ‘lack of knowledge and approval’ to apply to the parts which were not read and understood.
The courts have said that any legal challenge must have a realistic rather than fanciful prospect of success. There must be a real doubt about the testator’s understanding of the terms of the will they have signed. If that doubt is present the burden of proving the testator had ‘knowledge and approval’ falls to those seeking to confirm the validity of the Will.
How we can help you contest a will
We deal with contested wills nationwide and are Legal 500 recommended. We can often work on a no win, no fee basis. For further guidance on whether you can contest a will on the grounds of lack of knowledge and approval call our free legal helpline on 0333 888 0409 for a case assessment or email us at info@contesting-wills.co.uk
Undue influence
We are all free to make our wills in whatever way we wish. However, where someone is compelled or coerced then you may wish to contest a will on the grounds of undue influence to have it declared invalid.
Contesting a will on the basis of undue influence involves a number of legal complexities. The courts require clear evidence of conduct that effectively amounts to coercion. It is not sufficient to merely show that the person making the will was put under moral pressure for instance, or that a friend or family member deliberately set out to ingratiate themselves – however cynical and distasteful that conduct might be.
We specialise in dealing with contested will disputes and can assist both claimants (those arguing that the will is invalid) and defendants (those who maintain that the wills is legal). So, if you are an executor or beneficiary facing an undue influence claim then you may wish to speak to us about the best way of defending the challenge. And if you are looking to contest a will on the grounds of undue influence and think you will be able to obtain sufficient evidence to support the allegation then we will be happy to assist.
We offer a free 30 minute consultation with a specialist solicitor on any contested will case. So, if you would like to contest a will on the grounds of undue influence, or defend a challenge that is being made to the validity of a will you wish to uphold, contact one of our specialist solicitors now for a free case assessment by calling 0333 888 0409 or sending us an email.
Fail to make adequate financial provision
Unlike some other countries, people in the UK are free to leave their money and property to whoever they wish. However, this can result in close family members, or people who were dependant on the deceased, being left out and suffering severe financial hardship.
To remedy these situations, the Inheritance (Provision for Family and Dependants) Act 1975 was introduced. The Inheritance Act was intended to provide protection to people who had been financially dependant on someone who has passed away and where their will (or the intestacy rules) had not made adequate provision for them.
The Inheritance Act can assist children, spouses, ex spouses, co-habitees and civil partners. The Inheritance Act can also assist anyone who was being financially supported by the deceased, for instance living in a home which was owned by them.
Under the Inheritance Act you can ask the court to make financial provision for you, regardless of what the deceased might have said in their will or what the intestacy rules state if they made no will.
The court will take into account your ‘needs and resources’ as well as those of any beneficiaries. Other factors which the court will consider are age, health, the length of any marriage and conduct.
Inheritance Act claims are different to other forms of contesting a will as there is no need to prove that the will is invalid; simply that it is unfair.
To contest a will on the grounds that you are not included in it by making an Inheritance Act claim, you will need to act fast. Very strict time limits apply and court proceedings must be commenced within six months of a grant of representation being made. If you are already out of time however, do not despair. The court does have discretion to allow late Inheritance Act claims, but it is vital to act quickly once you become aware of your right to make an inheritance claim.
We are often able to deal with these cases on a no win, no fee basis, so don’t let worries about funding legal costs put you off.
Our team of specialist Legal 500 recommended lawyers are highly experienced in dealing with claims under the Inheritance Act. You can read about our many successes in the ‘Case studies’ section, including:
- Contesting your partner’s will.
- Claim against mother’s estate.
- Inheritance claim against stepmother’s estate.
- Making an Inheritance Act claim for a child,
For a free assessment of your Inheritance Act claim contact us now by email or phone on 0333 888 0409.
Invalid procedure
To contest a will on the grounds of invalid procedure it is necessary to consider the Wills Act 1837, an archaic piece of law that is long overdue for reform. For a will to be valid it must be properly drafted and executed in accordance with that Act.
Handwritten wills and printed wills are both acceptable. Most wills these days are written on paper but in fact a will can be written on any material provided the other requirements are met and it can be produced to the probate registry.
Another requirement is that the will must be signed by the testator. However the Wills Act does not define what is meant by ‘signed’. The courts have even accepted a thumb print from the testator as a valid ‘signature’.
Valid procedure
The main requirements for a will to be validly prepared are:
- The testator must be aged 18 or over;
- The will must be in writing and signed by the testator. The testator can direct someone to sign the will on their behalf if they are unable to. However the testator must be present and direct the person to do so;
- The testator must have the intention that their signature is to give effect to the will; and
- The signature is witnessed by two independent witnesses and each witness signs the will.
If it appears these requirements have been complied with it raises the legal presumption that the will has been validly executed, unless evidence to the contrary arises. The presumption strengthens if the will has been drafted by a solicitor who has overseen its execution.
However, if the formalities of the Wills Act have not been complied with then you can contest the will on the grounds of invalid procedure.
Homemade wills
It is more common for people to contest a will on the grounds of invalid procedure when the will is homemade or drafted by an unqualified ‘will writer’.
Invalid wills
If a will is successfully challenged on the grounds of invalid procedure then it will not have legal effect.
If an earlier, valid will is in existence then the terms of this will shall apply. If there is no previous will the testator will be deemed to have died intestate and the estate would be distributed in accordance with the intestacy rules.
How we can help
Our Legal 500 recommended solicitors specialise in contesting wills and deal with claims from all over the country. We can often work on a no win, no fee basis and are happy to consider any case for no win, no fee funding.
To find out more about whether you can contest a will on the grounds of invalid procedure call our free legal helpline on 0333 888 0409 or email us at info@contesting-wills.co.uk
Fraud
What is Will fraud?
We are frequently asked, ‘Can I contest a Will on the grounds of fraud?’ To answer that question it is necessary to go back to basics and start by considering what fraud actually is.
Fraud is defined as ‘an intentional deception made for personal gain or to damage another individual’.
To prove Will fraud very clear and persuasive evidence is required. If fraud cannot be proved then it may be possible to find an alternative route to challenge the Will, such as the testator’s ‘lack of knowledge or approval’ of the Will, or their lack of testamentary capacity.
Because Will fraud is a very serious allegation to make, it should never be made lightly.
How can Will fraud arise?
Will fraud can arise where:
- The signature on the Will is forged;
- The original Will has been deliberately destroyed;
- The Will was not signed in the presence of both witnesses;
- The deceased was tricked into signing a document without knowing that it is a Will; or
- False representations are made about someone else so that the deceased either writes them in or out of the Will. This is known legally as fraudulent calumny.
Evidence of fraud
Proving that Will fraud has taken place can often present significant difficulties.
If someone has forged the deceased’s signature it may be possible to call a handwriting expert to give evidence. Such an expert can compare the signature on the Will with other examples of the testator’s signature and handwriting. If a court is satisfied that the signature is not the deceased’s, the Will is likely to be declared invalid and any previous Will (or the intestacy rules) shall apply.
However, handwriting analysis is not an exact science and there is a high degree of risk associated with such challenges.
How we can help
If you require further guidance on whether you can contest a Will on the grounds of fraud, then contact our free legal helpline on 0333 888 0409 or email us at info@contesting-wills.co.uk
Fraudulent calumny
Fraudulent calumny is a particular type of fraudulent behaviour. It arises where a beneficiary tells a testator lies (either knowing them to be false or not caring whether they were true or false), which resulting in the testator’s mind being poisoned and causing them to change their will.
Inheritance Act claims
In addition, to contesting a will on the basis that it is legally invalid, the provisions of a will can be contested under the Inheritance (Provision for Family and Dependants) Act 1975 if it fails to make adequate financial provision for someone who is protected under that legislation, such as a spouse, partner, child or dependant. A successful Inheritance Act claim does not mean that the will is invalid, it simply allows the court to modify the terms of the will to make financial provision for the person who is making the claim.
How our specialist solicitors can help you contest a will
If you would like to challenge a will then contact us for a free 30 minute consultation on the grounds for contesting a will and the options open to you. Call our free legal helpline or email brief details of your case to us.
Call 0333 888 0409 or email us at info@contesting-wills.co.uk
