How to

…successfully contest a Will

There are a number of ways that the validity of a Will can be contested if you believe that a loved one’s wishes have not been properly recorded. However, claims of this nature can become complicated, and we would always recommend seeking the advice of a specialist lawyer and carefully considering the options available to you before proceeding with any formal claim.

For a claim to be successful, at least one of the following grounds must be satisfied.

The deceased did not have testamentary capacity

Testamentary capacity is the term used to describe a person’s legal and mental capacity to make a Will. If the person challenging the Will is able to raise real doubt that the testator did not understand his or her actions at the time of making the Will, it will be for those seeking to prove the Will to establish that s/he did have capacity.

In a claim of this nature, the medical records of the deceased, and the opinion of a suitably qualified medical expert, will be crucial.

Lack of knowledge and approval

In cases where a Will has been written and executed correctly, and there is no question as to the testator’s mental capacity at the time of making the Will, knowledge and approval will be presumed.

However, if the person challenging the Will is able to show that the Will was executed in suspicious circumstances, the burden once again passes to those seeking to prove the Will to demonstrate that the deceased fully understood how it operated and approved its contents. “Suspicious circumstances” could arise include if the deceased:• was hard of hearing, unable to speak clearly or visually impaired • had low levels of literacy; or • was otherwise vulnerable, and the Will is particularly complex

Undue Influence or coercion

To succeed in a claim of undue influence it must be proved that the testator acted against their own volition, and that they were coerced into making a will that that they did not wish to make.

As the nature of this allegation if tantamount to fraud, the evidential burden is high. Also, given that most incidences of coercion are likely to have taken place behind closed doors – and the key witness (the deceased) is unable to testify – this is a very difficult ground to pursue. Instead, many clients will opt to pursue the previous ground and raise a case that the testator did not have the necessary to knowledge to understand their intention.

Forgery and fraud

If it can be proved, by way of a conclusive report from a handwriting expert, that a Will has been forged, it will be invalid.

It is also possible – although, for the reasons outlined in ground 3 above, unlikely to be successful – for a Will to be challenged on the basis of fraud. This could be appropriate, for example, where it is believed that the Will has been signed by a person impersonating the testator.

Rectification

A common claim by disappointed relatives embroiled in an inheritance dispute is that “this cannot have been what was intended.”

If it is believed that there has been a genuine mistake in recording the testator’s wishes – either through a failure to understand the testator’s instructions or due to a clerical error – the court can rectify the Will to give effect to the true intentions of the deceased.

To pursue a claim of this nature, it will be necessary to obtain the solicitor’s original file, together with a statement from the solicitor outlining whether they believe the Will reflects the deceased’s wishes. Abigail Zuk Managing Associate, Dispute Resolution team

If you’re looking to contest a Will based on any of the above grounds, or if you’re defending a claim from another person, always seek specialist legal advice to maximise your chances of successfully making or defending a claim.

For further information, please contact Abigail Zuk on az@swinburnemaddison.co.uk or by phone on 0191 3842441.