What Are The Grounds For Contesting a Will?

Lack of valid execution

There are a range of legal formalities which must be closely followed when a Will is created. If these are not accurately followed, the Will may not be considered legally valid.

Formalities for a Will to be considered valid include:

• It must be in writing
• It is signed by the testator, or someone on their behalf at their request
• The testator signed the Will with the intent of making it official
• There are two independent witnesses when the Will is signed

If any of these procedures were not correctly followed during the creation of the Will, a claim could be put forward to challenge its terms on the grounds of lack of valid execution (also known as lack of due execution).

Lack of testamentary capacity

To make a valid Will, a testator is required to have sufficient mental capacity, known as testamentary capacity.

Anyone making a Will may lack testamentary capacity if they are affected by certain conditions such as memory loss, Alzheimer’s disease, dementia, mental illness or a brain injury.

It must also be shown that a testator has a comprehensive understanding that they are making a Will, how the Will sets out how the estate will be divided after they die, to be aware of who their beneficiaries are and aware of the value of the estate.

If a testator is not considered to be of sound mind when they made the Will and/or did not fully understand the implications of the Will, they will not have testamentary capacity and a claim could be launched.

Who decides testamentary capacity?

Confirmation of testamentary capacity will typically be sought from a medical professional. This can be sought at the time the Will is made to confirm that it is valid and can be used.

That said, a retrospective opinion from a medical professional can be requested if there are any concerns regarding the testamentary capacity of the deceased when the Will was made. In some cases, this may prove that the original assessment of the deceased was not accurate.

Lack of knowledge or approval

Testators must be fully aware of the contents of a Will. If they do not, they will be deemed to have been lacking in knowledge and approval.

It is important to note that this is different from a lack of testamentary capacity. If lack of knowledge or approval is used, this indicates that the person had the mental capacity, they were simply unaware of the contents.

How can a lack of knowledge or approval be proven?

To prove a lack of knowledge or approval, the circumstances surrounding the signing of the Will should be thoroughly investigated.

For example, if any dramatic changes are made to the Will without proper explanation, there are unexpected errors in the Will, or a beneficiary is suddenly included/omitted, these could potentially point towards a lack of knowledge or approval.

Undue influence or duress

Undue influence or duress is a term used to describe an instance of someone being pressured or coerced into making a Will or including specific terms in an existing Will. Any examples of undue influence or duress will render a Will invalid, and a challenge can be made.

To successfully make a claim on these grounds, it must be shown that certain assets or parts of the estate included in the Will were given to someone as a direct result of them taking advantage of the testator.

There is a high standard of evidence required for these claims and it must be shown that there is no other explanation for the terms of the Will being weighted towards a beneficiary.

What actions could amount to undue influence or duress?

Undue influence or duress could include various actions that are considered to be unethical and are meant to force an individual to include or omit specific terms from the Will.

Actions could include:

• Emotional manipulation
• Coercion
• Verbal bullying
• Physical violence
• Gaslighting

It should be stressed that there is a line between simple persuasion and undue influence. While it may be morally questionable, it is not illegal to attempt to persuade someone to change the terms of their Will, remind them what is owed in the Will, or request something out of genuine financial necessity.

Fraud or forgery

If it can be shown that a Will has been forged or fraud has taken place in any form, it will be deemed invalid.

To summarise:

• Forgery involves a Will being made in someone else’s name, with a signature being faked
• Fraud may occur where false information is used to dictate the way a Will is executed, witness signatures are added at a later date, or a copy of Will is destroyed or hidden
• Will rectification and construction

If any clerical errors take place during the execution of the Will, there is a failure on the part of the person preparing the Will to understand its instructions, or the wording of the Will is ambiguous, a claim for Will rectification or construction could be launched.

Will rectification is the process of having the Will corrected by the court, either following construction or the correction of straightforward clerical errors.

Lack of financial maintenance

Lack of adequate financial maintenance is a very common reason for contesting a Will.

It may be possible to make a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. This is if you were financially dependent on the deceased, and the Will did not provide adequate provision.

The criteria for claimants on these grounds are strict. Only the following can make a claim for lack of financial maintenance:

• Spouses or civil partners
• Former spouses or civil partners who have not remarried
• Cohabitants who have lived in the deceased’s house for two years prior to their death
• Any other individual who was financially maintained by the person who died before their death

What are the time limits for contesting a Will?

The relevant time limits for contesting a Will depend on the type of claim being launched and the grounds used.

There is no limit for contesting a Will on the grounds of:

• Lack of testamentary capacity
• Undue influence or duress
• Lack of due execution
• Fraud or forgery

In the case of claims for lack of adequate financial provision, there is a six-month time limit from the grant of probate.

There is also a six-month time limit for Will rectification and construction.

While there may not be any time limits in place for certain grounds, it is still important that a challenge is launched at the earliest opportunity. It is often more difficult to challenge a Will as time goes on, especially as it may be more difficult to obtain relevant evidence.

Can you challenge a Will when the testator is still alive?

Under typical circumstances, you will not be able to challenge a Will while the testator is still alive. This is because the testator may still choose to amend their Will up until the point they die.

In the case of statutory Wills which have been drawn up for someone who has lost mental capacity, where you disagree with any of the terms of the Will, you may wish to challenge a financial deputy.

Who can contest a Will?

Exactly who will be able to challenge a Will depends on the circumstances and grounds used. Typically, the people involved in the testator’s life and who would have been expecting to have been a beneficiary of the estate will be able to make a claim.

How long does it take to challenge a Will?

The time it takes to challenge a Will depends on various factors, including the grounds used, the amount of evidence that needs to be obtained, and whether it is possible to find a resolution to a claim using an out-of-court disposal.

What does a ‘no contest’ Will mean?

When a testator creates a Will, they may elect to include a ‘no contest’ clause so that it cannot be challenged after they die.

These types of clauses often include specific references to a particular asset or beneficiary, preventing someone from making a claim against something they don’t wish for them to have.

Even where a no-contest clause is in place, it may still be possible to challenge a Will. If for any reason the Will is found to be invalid, the no-contest clause does not apply.

If challenging the Will on the grounds that it is not valid is unsuccessful, the no-contest clause will still be valid.

Do you need a solicitor to contest a Will?

While there is no strict legal requirement for a solicitor to be involved when challenging a Will, it is strongly encouraged in order to achieve the desired outcome.

Will disputes can be extremely complex in certain scenarios, which means the experience and expertise of a specialist solicitor can prove invaluable.

A solicitor will be aware of the type of evidence that needs to be obtained, the most effective methods for building a case, and can step in to respond if a matter becomes contentious and the potential for court proceedings becomes a possibility.

How our contested Wills solicitors can help

We understand how complex and challenging Will disputes can be, particularly as they often take place during a time of bereavement and heightened emotion. However, it is important that a Will accurately reflects the wishes of the testator and provides adequate provision for its intended beneficiaries, meaning a challenge is often a necessary step.

At JCP Solicitors, our expert contested Wills solicitors in South Wales can provide comprehensive and personalised support to anyone who is seeking to challenge a Will. We can advise on whether you are likely to have a valid case, and the most appropriate grounds to use, and guide you through the process step by step.

Equally, we can advise anyone who is defending a challenge to a Will, carefully reviewing the details of the claim being made and liaising with the other party to ensure that a suitable resolution can be found.

No matter your position, we are well-placed to support you and your claim. Richard Howells, Head of Inheritance and Trusts Disputes, is ranked as a ‘Leading Individual’ by the Legal 500 for contentious Trusts and probate work, including disputed Wills.

Our aim will be to take every step to achieve the right outcome for your circumstances. Wherever possible, we will seek to reach a settlement without the need for court, preserving important family relationships.

However, if it is simply not possible to reach a suitable resolution, we can provide expert representation during any proceedings that follow. 

Contact our contested Wills solicitors in South Wales

To discuss contested Wills with a member of our team, please contact your local JCP Solicitors office or use our contact form to ask a quick question or arrange a call back.