Mummy says…When someone close to you has passed away, it is the hardest thing imaginable. Hopefully the person will have left a Will, the legal document that sets out how the deceased’s estate is to be distributed to family members and/or other beneficiaries. But what if something doesn’t seem quite right?…
Far from being a Last Will and Testament, there are certain situations where a Will can be contested or
challenged in court. Most controversial of all are so-called ‘death bed’ Wills made shortly before the
testator’s death. While most are made perfectly legally, these types of Will are often viewed with deep
mistrust by relatives who feel they’ve been cheated out of their rightful inheritance.
If you are considering taking actions against a Will or the provisions made within it, expert legal
representation is highly recommended.
Contesting a Will
Contesting a Will is a complex undertaking that can be both lengthy and costly, not to mention upsetting
for all concerned, particularly given the circumstances. A Will can only be contested on valid legal grounds,
*Lack of due execution
A Will must be made in accordance with Section 9 of the Wills Act 1837 in order to be valid. It has to be
made in writing and must be signed by the testator (the person making the Will) with proper intent. It
must also be acknowledged and signed by at least 2 witnesses aged 18+ who may not be beneficiaries
*Lack of testamentary capacity
If it can be shown that the testator was not of ‘sound mind’ when making a Will, lack of testamentary
capacity can be used as grounds for contesting it. You will need to produce evidence in the form of
medical records, expert psychiatric assessments and witness statements to confirm that the testator
was not mentally capable of making the Will.
*Lack of knowledge and approval
If the testator was blind, deaf or dumb, illiterate or paralysed, s/he may well have been mentally
capable of making a Will. However, it is possible that the person may not have known or understood
the contents of the Will, and would therefore not have approved of the contents. If this can be shown
to be the case, the Will can be successfully contested.
The contents of a Will must be the free expression of the testator’s wishes, not the result of
manipulation, deception, intimidation, coercion or physical threats, all of which are considered undue
influence. Emotional appeals that result in the testator making provisions in the Will, however, are
perfectly legitimate, however unfair they may seem.
*Fraud and forgery
If you believe that the Will is the result of a fraud, a signature has been forged or the document
fraudulently tampered with, these are valid grounds for contesting the Will. *Rectification and construction claims
If you can prove that a clerical error, spelling mistake or other obvious failure has occurred by the person drawing up the Will, with the result that the testator’s wishes have been misrepresented, this is a valid ground for contestation. You can apply for this to be rectified by the Court. A construction case involves unclear or ambiguous wording in the Will which will need to be interpreted by the Court.
If a Will is successfully contested, it will be declared invalid. In its place, the next most recent valid Will will
be executed instead. Failing that, intestacy rules will apply.
Challenging a Will
A Will cannot be contested if it has been made according to the law, however the provisions made within it
can be challenged in Court. There are 2 ways you can do this:
According to the Provision for Family and Dependants Act 1975, reasonable provision should be made
for the financial dependents of the deceased in the Will. If you feel that this has not been done and that
you have suffered as a result, you can bring a claim against the estate.
This is a legal challenge based on promises made by the testator during their lifetime that was then not
fulfilled in the Will. If the testator acted consistently giving repeated assurances that a certain
inheritance would be forthcoming, which the would-be beneficiary then relied on but were not
forthcoming in the Will, a claim on the basis of Proprietary Estoppel can be brought.
I hope you never have to contest or challenge a Will, but if you do, I hope this post is of help you at this difficult time.