If you have recently suffered a bereavement and you feel that the will they left behind does not accurately represent the testator’s wishes, you may find that there are legal grounds for contesting the will. Here, we’ll provide you with a guide on how you can contest or challenge a will.
What is a Last Will and Testament?
If you’re not quite sure what a will is, it is generally referred to as the Last Will and Testament. A will is a legally binding document that lays out how someone wants their estate to be left following their death.
If you are the person making the will, you are known as the testator, and your estate includes assets like savings, property, money, and possessions. If there is no will in place when someone dies, then the law will dictate how their estate will be distributed. This is done by following the rules of intestacy. If you do not create a will, the people you want to inherit parts of your estate may get nothing.
If you choose to make a will, this will help to ensure that everyone is aware of how you would like to leave your estate. However, there are still situations where a will can be contested or challenged.
Contesting a Will
When it comes to contesting a will, the whole process is highly complex and can often be a very demanding situation. Contesting a will can be costly and can also take up a lot of your time. According to the information on the-inheritance-experts.co.uk when contesting a will and submitting the case to court, it can take between 12 and 18 months to finalize. This is why it is vital that you seek out legal advice from the beginning.
If you are considering creating a claim to contest a specific will without consulting legal advice, the process can quickly become extremely costly for you. When it comes to contesting a will, there can also be time constraints involved. In some cases, this can be as little as six months from the date probate was granted, so it’s vital that you do not waste any precious time.
If you are thinking about contesting a will, you should also consider the emotional demand for all concerned in this process. Contesting a will can potentially mean battling and arguing with other members of your family over the estate of your loved one, at a time where grief is still being felt. It is important for you to understand that you are unable to create a claim based on raw emotion – you need to have a strong and valid argument as to why the will can be legally contested.
Situations Where a Will Can Be Contested
If you are considering contesting a will, you need to have legal grounds to do this. There are some situations where you can look into contesting a will. We’ll look at these below.
If you suspect that undue influence has been used during the creation of a will, this can be a key reason for contesting the will. To demonstrate that undue influence was used, you will need to show that deception, coercion, intimidation or manipulation was used by someone in order to pressure the person creating the will.
This undue influence will impact the content of the will to the advantage of whoever is influencing their decision. If you suspect that undue influence has been used on the testator, confinement, physical violence, deception, and threats are all examples of undue influence.
Lack of Due Execution
Another reason for contesting a will can be if you believe it has not been correctly executed. In order for a will to be valid, it has to comply with section 9 of the 1837 Will Acts. This document states that a will lacks validity if it fails to meet one or more of the criteria below:
- The will must be completed in writing and signed by the testator
- It must show that by signing the document, the testator has chosen to give effect to the document
- At least two witnessed must be present at the time of the testator signing the will
- Each witness will either have to attest and sign the will
- A witness is required to be at least 18 years of age, and you are unable to leave your witness or their married partners anything in your will
Lack of Testamentary Capacity
To make a valid will, you must be considered of ‘sound mind.’ To be of sound mind, the person making the will must:
- Understand they are creating a last will and testament
- Understand the effect of this document
- Know the extent, value, and nature of your estate
- Understand the consequences of including and excluding individuals in their will
- Not be suffering from any ‘disorder of the mind’ which could have an impact on your views
If you believe that your loved one did not meet any of the criteria outlined above, then this can offer a starting point for challenging a will based on the grounds of lack of testament capacity.
One of the most apparent reasons for contesting a will is if you believe it has been forged, or if you believe that fraud may have taken place. This particular reason can be extremely difficult to prove and can be very costly.
Lack of Knowledge and Approval
When a person is signing a will, it is vital that they are aware of what they are signing. While the testator did not lack testamentary capacity, they may not have been aware of the content of their will if they were:
- Deaf/and or dumb
- Unable to write
- Unable to speak
A “Death Bed” Will
Death Bed wills are typically made either days or hours before the death of the testator. While there is nothing wrong with creating a will during this time, they are often viewed as deeply suspicious by relatives who have been denied an intended inheritance as a result of a last-minute change. The fact that a new will was created just before your loved one passed away will not necessarily mean there are grounds for contesting a will. However, you may be able to contest it if you can show that undue influence was used or there was a lack of testamentary capacity.
Challenging a Will
A will may be legitimate, and so you will be unable to contest its validity. In this scenario, you still have the option to challenge the will. There are two main ways you can legally challenge a will.
The first is Proprietary Estoppel. This can be sued if you feel the testator gave you assurances that you would inherit land or property, but this was not honored in their will.
Another way you can challenge the will is through the Inheritance Act 1975. If you were financially dependent on the deceased, you could use this to argue that not enough provision was made for you in the will.
While the above gives you a brief overview of the main ways a will can be contested, each case will be different. This is why it is imperative that you always seek advice from professional solicitors to discuss your case in depth.