Probate and Will, Trust & Estate Disputes

Publish date

12 April 2018

When you can challenge a will

Despite common misconceptions, there are only four possible ways to challenge a will.

1.  Lack of proper formalities

The will needs to cover all of the legal formalities, i.e. it needs to be in writing, and signed by the testator (the person making the will), or by some other person in the testator’s presence and by their direction; it must appear that the testator intended by their signature to give effect to the will; the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and each witness must either attest and sign the will, or acknowledge the testator’s signature, in the presence of the testator.

2.  Lack of testamentary capacity

i.e. whether the testator understood that he or she was making a will and had the necessary mental capacity to do so.
A three part test for testamentary capacity was laid down in case law which sets out that a testator has capacity if:
i.    he/she understands the nature of making a will and its effects
ii.    he/she understands the extent of the property of which they are disposing
iii.    he/she is able to comprehend and appreciate the claims to which they ought to give effect and is not affected by any disorder of the mind that influences their will in disposing of their property.

A common claim is that the testator had dementia when he/she made his/her will and that therefore means that he/she did not have the necessary capacity for his/her will to be valid. However, the two do not always go hand in hand. It is prudent, where there is a concern about capacity, to obtain copies of medical records and advice from medical experts.

3.    Lack of knowledge and approval

i.e. the testator must have known and approved the contents of his/her will and appreciated the extent of what he/she was giving to whom. It is often closely related with testamentary capacity. However, recent case law highlights that ‘want of knowledge and approval’ allegations, as they are also known, can and will succeed in the absence of establishing that a testator lacked testamentary capacity, and that the Courts will consider knowledge and approval as a separate issue.

The Court will scrutinise all of the ‘suspicious’ circumstances in connection with a disputed will when dealing with want of knowledge and approval allegations. For example, if the relationship of the beneficiary to the testator was not close, or the will contains a radical change without a rational explanation, it may be deemed as ‘suspicious’.

4.    Undue influence

For this challenge to succeed there must be coercion or fraud. There is a very high threshold to challenge a will on this basis and it is rarely brought as a claim on its own but is more commonly added to another challenge, for example lack of knowledge and approval.

If you are challenging a will on this basis, you have to prove that the person making the will was influenced to the extent that their free will was completely oppressed. This can happen over a period of time, i.e. by way of a ‘drip, drip’ effect. Direct evidence of undue influence is unusual, given that the very nature of the act means that it happens behind closed doors, which can of course be an obstacle for a challenge of this kind. Claims for undue influence in disputes over wills are especially difficult to prove.

Inheritance Act claims

Certain family members and dependants of the deceased, can bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975, if a will, or the intestacy rules, are not thought to provide reasonable financial provision for them. The Act allows the court to vary the distribution of the deceased’s estate. Save for a surviving spouse or civil partner, the person bringing the claim is entitled to such reasonable financial provision as is necessary for their maintenance, insofar as the estate can provide it. A spouse or civil partner is entitled to such financial provision as is reasonable in all the circumstances, ‘whether or not that provision is required for his or her maintenance’.

With regard to time limits, generally speaking, in claims to challenge the validity of a will, there is no time limit. However, if you delay in bringing a claim then the Court may hold that as a result of this delay you are no longer entitled to bring your claim. An Inheritance Act claim must be brought within six months of the date of the grant.

It is of course only worth challenging a will if you are going to gain something by doing so. It is therefore always necessary to make enquiries into previous wills, as if a will is successfully challenged, the previous will is then admitted to probate. If there are no previous wills, the estate would be distributed under the intestacy rules, so it is again worth considering whether you would inherit under those rules.

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