The contesting of a will is a highly complex and expensive process, but it can happen. It is not something to be done lightly, nor should the emotional consequences it may have be underestimated, particularly at a time when those involved are still grieving the loss of a loved one. However, it is something that should be taken into consideration when preparing a will so that the chances of it being contested are minimised, saving your loved ones even more heartache at a difficult time. In this month’s article we look at the grounds for contesting a will and what the process for doing so is.
There are a number of grounds on which a will could be contested. They are as follows:
- Lack of due execution. This dates back to the Wills Act 1837 and there are five criteria on which it can be invoked:
- Failure of the testator (the person signing the will) to sign the will or have someone sign it on their behalf, directed by them, and in their presence
- If it is not clear that the testator intended their signature to give effect to the will
- If the will was not signed in the presence of two witnesses, present at the same time
- If the witnesses did not sign the will in the presence of the testator (although both witnesses need not be present at the same time for this)
- Where there is evidence that one or more of these factors were not properly executed
- Undue influence. This can be invoked where the person contesting the will feels that the testator was coerced, manipulated, deceived, or intimidated into making certain choices in their will. While threats, confinement, deception, and physical violence are considered to be undue influence, it is important to note that emotional appeals are not, so a will cannot be contested on these grounds.
- Lack of testamentary capacity, or in other words, not being of ‘sound mind’. For a will to be considered valid, the testator must not be suffering from any mind disorder and must understand the following:
- That they are preparing a will
- The effects of this will
- The nature, value, and extent of their estate at the time that they are making the will
- What the consequences may be of excluding certain people from the will
- Lack of knowledge and approval. If a person is blind, deaf, paralysed, or illiterate, it must be proven that they knew they were preparing and signing a will.
- Fraud. Although this is difficult to prove, if it can be demonstrated that a will is fraudulent then it can be contested.
- Rectification and construction. If, during the preparation of the will, there has been a clerical or typographical error which changes or fails to understand the testator’s wishes, then an application to the court can be made for this to be rectified. It must be done within six months of the date of grant of probate.
For advice and assistance in preparing or updating a will, our team at IWC Probate Services would be happy to help. For a discussion or to make an appointment, simply calls us on 020 8017 1029 or drop us a line at firstname.lastname@example.org.