How can I contest a will?

Contesting a will is a legal process that allows parties to challenge the validity of a deceased’s will. While a will is a crucial document that sets out, amongst other things, how a person’s assets and property should be distributed after their death, there are circumstances where parties may have legitimate reasons to question the validity of the will. This article explores some of the grounds on which a party can contest a will, the legal process involved, and the importance of seeking legal advice.

 

Lack of due execution 

The starting point when considering the validity of any will is the question of due execution. By virtue of section 9 of the Wills Act 1837, no will shall be valid unless: 

a)        It is in writing and signed by the testator (the person making the will), or by some other person in his presence and by his direction; and

b)       It appears that the testator intended by his signature to give effect to the will; and

c)        The signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

d)       Each witness either attests and signs the will or acknowledges his signature in the presence of the testator (but not necessarily in the presence of any other witness).

If the formalities of Section 9 have not been complied with, then any will would be held to be invalid.

 

Assessing testamentary capacity

In addition to the formal requirements as set out above under Section 9, for a will to be valid the testator must be over the age of 18 and have the necessary testamentary capacity to execute a will. The legal test for assessing testamentary capacity was set out in the case of Banks v Goodfellow 1870, which provides that the testator must:

• Understand the nature and effects of making a will.
• Understand the extent of his or her assets they are disposing of under the will.
• Understand and appreciate the claims to which they should give effect; and
• Not suffer from any “disorder of the mind” that perverts their sense or right or prevents the exercise of their natural faculties in disposing of their assets by the will.

When the Mental Capacity Act 2005 (“the Act”) came into force, it was initially considered that the Act would supersede the test of Banks v Goodfellow. However, subsequent case law has found that Banks v Goodfellow is still the appropriate test to use in connection with the assessment of capacity to the extent that it relates to the question of the making of a will.

Where a will which on its face is rational, has been executed in accordance with the formalities of Section 9 and made by a person whose capacity is not in doubt, there is a presumption that it is valid. That presumption can, however, be rebutted if there is evidence to suggest that the testator lacked testamentary capacity at the time the will was executed. This rebuttal would give rise to a potential claim to challenge the validity of the will. To succeed with a claim, it is likely that expert evidence from a medical practitioner would be required.

 

Knowledge and approval

In addition to the factors set out above, in order for a will to be valid, the testator must have known and approved the contents of the will. The test for knowledge and approval is relatively simple – did the testator understand (i) what was in the will and (ii) what its effect would be at the time of execution? If they are found to lack knowledge and approval, the will shall be invalid. As with testamentary capacity, it is presumed that the testator did know and approve of the will’s contents if there has been due execution of the will, the testator had testamentary capacity to make it and, on its face, the will appears to be rational. If, however, the circumstances surrounding the execution of the will “excite the suspicions” of the court, then the presumption can be rebutted.   

Examples of suspicious circumstances are surprising beneficiaries – when the beneficiaries named in the will are unexpected or significantly differ from prior wills, which may raise suspicions about the testator’s true intentions.   Or unusual or complex provisions in a will that are inconsistent with the testator’s prior wishes may also lead the court to investigate further.

Each case will turn on its own facts, but where a will has been prepared by a solicitor it will be more difficult to successfully challenge the validity of the will as usually the solicitor will have read over the contents of the will to the testator in person.

 

Undue Influence

Challenging the validity of a will on the basis of undue influence requires a finding that someone has exerted pressure or coercion over the testator in connection with the contents of their will.  A party seeking to challenge a will on this basis must prove actual undue influence of the testator resulting in assets passing to someone as a result of their undue influence and contrary to the testator’s wishes. It is also necessary to show that there is no other reasonable explanation for the contents of the will. 

Undue influence claims are very hard to prove, and substantial evidence demonstrating the actual undue influence will be required. Evidence does not, need to be restricted to witness evidence from the party bringing the claim. Evidence from other parties, even if they have no interest in the deceased’s estate, can also be included.

 

Fraud and forgery

Any will which has been forged or obtained by fraud will be invalid. An example of this is when a testator has not signed the will and their signature has been forged by another person. Alternatively, someone has fraudulently got the testator to sign a document, which the testator was not aware was a will. Although these are valid reasons for contesting a will, they are serious allegations. The burden of proof will be on the person who makes the allegation of fraud, and they must have sufficient evidence to support their claim.   

 

Reasonable financial provision

Although not strictly a challenge to the validity of the will, The Inheritance (Provision for Family and Dependants) Act 1975 “(the 1975 Act”) does make provision for certain categories of persons to be able to bring a claim under the 1975 Act if the deceased’s estate does not make reasonable financial provision for them. Whether a party would have a potential claim under the 1975 Act or the categories of person able to bring such a claim is beyond the scope of this article. We cover a more detailed guide on Inheritance Act Claims.

 

The process of contesting a will

The following is a brief outline of the steps that should be taken:

1. Entering into pre-action correspondence with your opponent(s). The Civil Procedure Rules 1998 sets out various pre-action protocols that should be complied with before starting court proceedings.  Pre-action protocols follow a specific process and encourage the exchange of documentation with a view to assist with parties reaching settlement or resolution of the claim without the need to issue court proceedings.
2. If an agreement cannot be reached on a pre-action basis, then court proceedings can be issued.  Proceedings will either be issued in the High Court or County Court, depending on the complexity and value of the estate and the nature of the claim being brought.
3. Following the issue and the filing of your opponent(s) response to the claim, the court will consider the case management steps to be taken by each party prior to the trial. These steps will include disclosure of relevant documentation and provision of witness evidence. Depending on the nature of the claim, expert evidence including a medical practitioner’s report may also be needed.
4. The final stage will be for the case to proceed to a trial for a judge to decide the outcome based on the documentation and evidence presented and relevant case law.

 

Do you require legal advice?

Contesting a will is a complex legal process with strict time limits, some of which are very short in time. It is therefore advisable to seek legal advice sooner rather than later. If you think you may have grounds for contesting a will, defending a claim or bringing or defending an Inheritance Act claim, please contact our dispute resolution team today on [email protected] or 0118 952 7206.​​​