Contesting the validity of a will

Anyone with a legitimate interest in an estate can challenge a will. If you wish to contest a will, you should contact our will disputes solicitors as soon as possible.

Relevant evidence you might need to assist in proving your case will depend on the sort of challenge you are raising, but can include:

• Medical notes and records, medical reports showing what the deceased’s mental state was over time
• Letters, emails, telephone records or other documents that show the deceased’s wishes or how they regarded certain family members/beneficiaries
• Any documents which show how someone else may have influenced or pressured the deceased
• Testimonies from witnesses who saw or heard something suspicious about how the deceased made their will
• Will files or solicitors/accountants/financial advisors files showing evidence of the deceased’s wishes and intentions
• Bank/savings statements for the deceased
• Examples of the deceased’s signature if these differ from the signature on the will

Generally, there is no time limit for contesting a will and challenges may even be made after probate has been granted. However, the sooner the will is contested, the higher the chance that the contest will be successful.

If you’re challenging the will under the Inheritance Act 1975, you must challenge within 6 months of probate being issued. You’ll only be able to bring a claim outside of the 6 months with the permission of the court.

The costs of contesting a will ultimately depend on when the matter settles. Court proceedings are expensive so, where possible, it’s always preferable to settle via negotiation or mediation.

If court proceedings are required, the general position is that the loser pays. However, you should proceed on the assumption that you will have to bear your own costs and be wary that, in the event your contest in unsuccessful, you may have to bear the other party’s costs as well as your own.

To help meet the potential costs, we can assist you in exploring potential funding options, including:

• Deferred fee arrangements
• No win no fee
• Legal expenses insurance
• After the event insurance

As well as the common law test from Banks v Goodfellow, the test under the Mental Capacity Act 2005 also applies to assessing whether a person has capacity. This states that a person lacks capacity in relation to a matter if “he is unable to make a decision for himself in relation to that matter because of some impairment of or a disturbance in the functioning of the mind or brain”. However, this doesn’t replace the test set out in case law in relation to testamentary capacity.

Generally, the testator must have capacity at the time of the execution of the will.

However, the case of Parker v Felgate does provide that a will may be valid if the testator had capacity when providing instructions for the will but later lost capacity when it was executed.

This is provided that the testator recalls giving the instructions and can understand they are executing a will, even if they don’t remember the exact terms or understand the contents of the will itself.

It is presumed that a testator was competent with capacity upon executing the will and so evidence will have to be raised to show that this was not the case (ie medical evidence that the testator did not have capacity due to an illness).

The possible indicators of undue influence include:

• Changes to the will that are frequent or sudden, detrimental to some would-be beneficiaries of the deceased or different to wishes expressed by the deceased previously
• An individual benefitting from a new will despite not being included in the previous will
• An individual being awarded a much larger proportion of the estate than they stood to inherit under the previous will or was reasonably expected
• The deceased being dependent on the individual benefitting under the new will at the time it was made
• The deceased exhibiting a physical and/or cognitive decline at the time the will was made and being at higher risk of being subject to forceful persuasion

To prove actual undue influence, it must be shown that someone has actively coerced the testator into writing their will a certain way. Not all influences on a testator are necessarily undue; persuasion, feelings of gratitude for past services, or pity for someone’s economic circumstances can be valid and fair influences which a testator takes into account when deciding the terms of their will.

There’s no presumption of undue influence. Actual undue influence has to be proved, and the person raising the allegation must prove that the influence was excessive, improper, or unconscionable. This can be very difficult, particularly where the person being undue influenced (such as a testator) has died. Setting aside a will on the grounds of actual undue influence is, therefore, not impossible but is far from straightforward.

Undue influence does not automatically give rise to criminal liability. However, in some cases, undue influence can amount to a criminal offence, such as fraud or abuse.

If a testator has signed a will, it’s presumed that they had knowledge and approval of its contents. However, this presumption doesn’t apply where the testator is blind, deaf, mute or they haven’t signed the will personally. In such circumstances, a different clause is required at the end of the will to expressly state that the testator knew and approved the contents.

The presumption can be rebutted where there are suspicious circumstances surrounding the execution of the will (ie it was prepared by someone who benefits from it). In such cases, the person seeking to rely on the will must show that the testator did in fact have knowledge and approval of the contents. Evidence may include statements from the testator or statements from people who witnessed the will.

Another reason that a will isn’t as a testator intended may be due to an error or mistake occurring in the preparation or drafting of the will.

In such circumstances, an application to the court can be made to rectify the will so that the testator’s true intentions are reflected.  The court will do this where, due to some clerical error or failure to understand the testator’s instructions, the will fails to carry out the testator’s wishes.  Such an application should be made within six months of the grant of probate.

Where an error or mistake has been made by the solicitor or other professional who drafted the will, another option may be to bring a claim against their firm for negligence.