One of the questions we are regularly asked by people who have been disinherited is, “How do I challenge a Will?” Contentious Probate solicitor, Jack Dray, looks at how to go about it.
First of all, it is important to check that the Will complies with all the formalities under the Wills Act, namely:
- It must be in writing, and
- It must be signed by the deceased in the presence of two witnesses who signed the Will in the deceased’s presence
If the Will complies with these formalities then the Will can be challenged on any of the following grounds:
Lack of Testamentary Capacity
In essence, when someone makes a Will, they must have sufficient mental capacity to do so (known as Testamentary Capacity). The law requires that the deceased understood:
- That they were making a Will and it had the effect of carrying out their wishes upon death;
- The extent of their property and what it consisted of; and
- The claims on the estate which they ought to give effect to.
Undue Influence
This is where the deceased had pressure placed upon them or were influenced into either making or changing the terms of a Will.
This is often a difficult ground to prove when you challenge a Will. However, the tell-tale signs of undue influence include
- Last minute changes to a Will
- Family being disinherited and people who were only close to the deceased for a short time being listed as beneficiaries
- A handmade Will that was drafted without the use of a solicitor
- The deceased was vulnerable
- The deceased stopped contact with close ones prior to their death
Lack of Knowledge and Approval
To put this simply, the deceased must have ‘knowledge and approval’ of the Will’s contents for it to be legally valid. This challenge can often overlap with challenges based on capacity, fraud or forgery.
Forgery or Fraud
This is where a Will has been falsified in its entirety, or parts of it have been altered or forged in some way. This includes forging the deceased’s signature.
Who can challenge a Will?
Any person who has a vested interest in the Will is able to challenge it. This means that a spouse, a child, a cohabitee or any person benefiting from the Will, or a previous Will, can challenge a Will.
What happens if the Will is declared invalid?
If the challenge is successful the Will is declared invalid and the terms of the deceased’s previous Will are put into effect. If the deceased did not make an earlier Will, then their estate is distributed as per the intestacy rules.
How we can help
If you want to challenge a Will then contact our legal helpline for a free initial case assessment and details of No Win, No Fee funding.
Call us on 0333 888 0409 or send an email to [email protected].