The legal reasons for contesting a Will under the law of England and Wales are as follows:
The Will was not properly executed
Under the Wills Act 1837, a Will must be:
• in writing,
• signed by the Testator (or someone who the Testator has allowed to sign the document, and this is done in the Testator’s presence), and
• in the presence of two witnesses who are not beneficiaries under the Will, and
• signed by the Witnesses in the Testator’s presence.
If you wish to dispute the Will on the grounds it was not properly executed, the onus is on you to prove, on the balance of probabilities, that one of the above four events did not happen.
Lack of testamentary capacity
If the Testator did not have mental capacity at the time he or she made their Will, the Will can be deemed invalid. The test used by the Courts to establish testamentary capacity comes from the 19th century case of Banks v Goodfellow (1870). To establish mental capacity, the Testator must:
• Understand the nature of making a Will and its effects.
• Comprehend the extent of the property of which they are disposing.
• Be able to understand and appreciate the claims to which they ought to give effect
• Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.
Establishing a lack of testamentary capacity is difficult as Solicitors have a duty to ensure their client has mental capacity when they advise on and draft a Will. The Court will normally require evidence in the form of expert reports from a medical profession.
A person cannot be coerced into making a Will or make a Will in response to threats and/or intimidation. Proving undue influence is difficult, because the coercion, threats, violence etc is likely to have happened in private. It is essential to take advice from a Solicitor if you are thinking about disputing a Will on the grounds of undue influence, as you may be liable for the other side’s costs if you are unsuccessful.
Wills can be disputed if you can show that the document or signature of the Testator has been forged or another type of fraud has occurred, such as the Will being altered by someone other than the Testator.
The Testator did not know or approve of the contents of the Will
In situations where the Testator was blind, or could not read, it may be proven that they had no knowledge of what was contained in the Will they signed. Suspicions may be aroused if a major beneficiary was not close to the Testator (or only became close to them shortly before they died) and wrote a majority of the Will.
Even if you have evidence that the Will you are disputing is invalid, it is likely that a settlement will be reached before you go to Court. This equals a positive outcome, as litigation is expensive and stressful. If your Solicitor believes you have a valid claim, they will submit the details to the Probate Registry Office. This will have the effect of delaying probate for at least six months, which gives time for the dispute to be resolved.
Please note, this article does not constitute legal advice.
Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey. We have a highly experienced private client team who can assist you with all matters relating to contentious Wills and probate. To make an appointment, please call us on 01932 840 111.