How To Contest A Will
There are several ways in which a will can be contested, the most important being:
- when a will has not been executed properly
- when the person making the will did not have capacity
- lack of knowledge and approval of the person making the will
- when the person making the will has been wrongly influenced by someone else
- where a will has been forged
When a Will is not Executed Properly
For a will to be valid, there are numerous requirements that have to be met. These date back to the 19th Century, and there was a consultation in 2017 about relaxing some of the rules. However, for the time being, for a will to be valid it must be:
- in writing;
- signed by the person making the will (known as the "testator");
- if not signed by the testator, it must be signed in the presence of the testator, by someone who has the testator's authority to sign;
- the testator must have intended their signature to give effect to the terms of their will;
- at least two witnesses must be present when the testator signs their will; and
- both witnesses must also sign the will in the presence of the testator.
It can be difficult to contest a will on the grounds that it was not executed properly, as the presumption is that a will was validly executed, unless there is evidence to the contrary. This is therefore a heavy burden upon the person seeking to contest the will. However, in some cases it can be straightforward, such as if there was only one witness.
When the Person Making the Will Did Not Have Capacity
"Capacity" is a terms used by lawyers to mean that the person signing the will understood what was happening. Again the rules relating to capacity date to the 19th Century, and come from a case known as Banks v Goodfellow. In that case, it was set down that a person making a will must understand:
- they are making a will;
- what the will says;
- the extent and value of their estate; and
- what the consequences are if they decide to leave people out of their will.
A will can be challenged if you think that the person making the will did not understand any of these points. It can be difficult to prove that a testator did not know that they were signing a will, or that they did not know what it said in their will. However, evidence that they did not know how much their estate was worth can be available, particularly if large assets are not mentioned in the will.
Leaving a spouse, or a child out of a will is a very common reason for a will to be contested, and there are specific rules governing these types of cases, which have been the subject of several court decisions in recent years.
Lack of Knowledge and Approval of the Person Making the Will
To a large extent, this is a development of the points made in the previous section, that a testator must understand that they are signing a will and what it says.
It can be difficult to prove that a testator did not know what they were signing, but a will can be contested on the basis of lack of knowledge and approval in certain circumstances. If the testator was assisted in the preparation of their will by a beneficiary, if the circumstances were suspicious, the validity of the will could be challenged.
When the Person Making the Will has been Influenced by Someone Else
This is commonly known to lawyers as "undue influence" and covers circumstances where a testator has been persuaded by someone else, to leave them property or money or other assets. There has to be an element of coercion, or the testator being forced, to sign the will against their wishes.
This could happen where a child of the testator is in financial difficulty for example, or where a vulnerable person is befriended by a neighbour or distant relation who persuades them to change their will in their favour.
Where a Will has been Forged
As set out above, a testator has to sign their own will (except in rare circumstances) and if the will is signed by someone other than the testator, then it is regarded as a forgery. A forged will is not valid and can be contested.
If you believe that you have grounds to contest a will, contact one of our experts today for a free discussion about how we can help. In many cases, we are able to act under the terms of a conditional (no win no fee) agreement.