Lack of mental capacity
The most popular basis for contesting a will is on the grounds of mental capacity. Anyone making a will must have the appropriate level of mental capacity. Lawyers refer to this as ‘testamentary capacity’. If that level of capacity was not held when the will was made then a challenge is likely to succeed.
Assessing whether someone has testamentary capacity however is not straightforward. For instance, many people assume that if the will maker had dementia then they would lack capacity, but in reality it is far more complex than that. We have to consider each individual case on its own facts, and it is often necessary to call upon medical experts to determine whether someone was likely to have had capacity.
Lack of knowledge and approval
Closely linked to mental capacity, but a separate and distinct ground for contesting a will nevertheless, is to challenge the validity of a will on the basis that the maker of the will lacked knowledge and approval. Again this is a complicated legal principle and calls for specialist legal guidance.
Undue influence
Undue influence is another of the grounds for contesting a will, but it is notoriously difficult to do so successfully. The law acknowledges that an element of influence is involved in the making of virtually every will. The circumstances therefore have to be extreme for an allegation to be upheld, and successful challenges generally involve an element of coercion.
Incorrect procedure and fraud
Other grounds for contesting a will include failure to follow the correct legal procedure and fraud.
Inheritance Act claims
In addition, to contesting a will on the basis of invalidity, 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 we can help you
If you feel that you have grounds for contesting a will and would like free initial guidance on the options open to you then call our free legal helpline or email brief details of your case to us.
Call 0333 888 0409 or email us at [email protected]