Reasons for Contesting a Will

Grounds for challenging a Will

The Inheritance Act

Under the Inheritance (Provision for Family and Dependants) Act 1975, an application can be made if the deceased failed to provide reasonable financial provision for the class of people defined in the Act.  If successful, such a claim will always mean that the original beneficiaries will end up with less than they were originally allocated. Even a successful claim does not necessarily lead to the wishes of the Will being totally disregarded. Those mentioned in the Will may still inherit something.

Demonstrating undue influence

If a will has been made and the person making the Will has been subjected to undue influence then the will may be declared invalid. Undue influence requires ‘coercion tantamount to force’. In other words, the person making the will is doing so because someone else is forcing them to do it. Mere suggestion or persuasion is not enough to show undue influence.

The deceased need not have been suffering from mental problems for the courts to pursue this avenue. Any use of manipulation, deception or intimidation to such an extent that the person making the will is not doing so out of their own free choice will be sufficient to show undue influence. However, this can be difficult evidence to find and must be more than mere suspicion.

It is more common to claim that the deceased lacked knowledge or approval of the contents of the Will. This generally means that although the deceased very well may have understood the points of the Will, they did not know or agree with everything that was in a will. A typical example is a blind person signing a will having been misled as to the contents

Demonstrating a lack of testamentary capacity

This is usually due to some kind of mental capacity problems such as dementia or Alzheimer’s disease.  The medical records will be very important evidence and you may also need to get a statement from the person who drafted the will.

Forgery

Forgery of a Will is notoriously hard to prove in court, and there can be costs and risks if you allege fraud and then fail to prove it.

Set aside the Will

In order to be valid the Will has to be drawn up correctly. This means that it should be signed by the testator in the presence of two witnesses who also sign the document. Ideally, the person who drafts the Will should be independent of its beneficiaries. As many of the elderly get their children to help them with their Wills, if they had a hand in actually drawing it up, it could be challenged.

Basic mistakes in Wills are becoming much more common due to the increasing prevalence of do it yourself document kits available in supermarkets and on the internet. These are often aimed at people with simple affairs, yet are deeply unsuitable for anyone with complicated finances, an extended family structure or a larger estate. Have an experienced lawyer look over it immediately.

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David Doulton, Long Ashton, Somerset May 2012

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