Courts cannot set aside or vary the provisions of Wills simply because certain family members consider that they have not been treated fairly.

The law around Wills comes from The Wills Act 1837 and all the subsequent case law and additional law that has developed over 180+ years. It is, as a result, hugely complex and requires specialist advice from a firm with knowledge and experience in this area.

Wills can be challenged on a large number of grounds and as each person’s circumstances are unique, so will be the challenge to a Will and the defence to that challenge.

There are requirements set out in the Wills Act as to the formalities required for a Will.

Aside from challenging the validity of a Will because it does not comply with these formalities, there are a number of other bases upon which the validity of a Will can be challenged.

These in summary, are as follows:

  • The person making the Will lacked testamentary capacity. Anyone who wishes to make a valid Will must be shown to be capable of understanding what a Will is and does; what the extent of their assets were at the time of the Will; and that they have a proper appreciation and understanding of those of their family and friends who could reasonably expect to receive some benefit. There are many cases where this level of understanding is not present. Examples could include somebody who is suffering from dementia or delusions.
  • Wills can be challenged on the basis that the person making the Will did not sufficiently understand and appreciate what they were doing.
  • The person making the Will lacked the appropriate knowledge and approval of the contents of the Will. There is a degree of overlap between this and lack of testamentary capacity. If it cannot be shown that the testator intended to create the specific terms of that Will, then it could potentially be held invalid. Let us take, for example, a case where someone had requested changes to their Will, but without reading the Will, signed a copy of an earlier draft which did not include those changes. That person might have testamentary capacity, but failed to have knowledge and approval of the contents of the will they actually signed.
  • The person making the Will was unduly influenced by somebody else who benefits under the Will. Many clients who come to see us want to challenge the validity of a Will on this basis. The legal and evidential requirements mean this is a difficult claim to bring and careful specialist advice is required. That is not of course to say that there are no cases or circumstances where such a challenge can be made.
  • That the Will is a forgery.

We have considerable expertise and experience in knowing what evidence needs to be gathered and what procedures need to be followed in order to assess whether there is any prospect of a Will being challenged on any of the grounds mentioned above. Our specialist Wills, Trust and Estate team will be able to tell you clearly whether there is any realistic prospect of successfully challenging the provisions of a Will which you are concerned about.

Key Contact

Stuart Downey

Partner in Dispute Resolution

Meet the team

FAQs

Below are some questions that we are frequently asked by clients who require advice on Will Challenges Law.

A Will dispute occurs when there is disagreement or contention over the validity or terms of a deceased person’s Will. In other words, it is a formal objection to the distribution of assets or the instructions laid out in the Will.

Anyone with doubts about the legitimacy of a Will has the right to contest it. Usually, the person making the claim has an interest in the estate. For example, they may have been expecting to inherit, but did not.

There is no time limit in which a claim against the validity of the Will must be brought. However, caution must be had not to delay the making of a claim as an unjustified delay may bar you from proceedings. Ideally, a claim against a Will is brought before the grant of probate is issued.

There are various grounds on which a Will can be disputed, including:

• Lack of testamentary capacity: A testator must have the required mental capacity to make or change a Will. If they do not, the Will is likely to be invalid.
• Undue influence: If someone coerces the testator to make decisions that they would not have made otherwise, the contents of the Will could be disputed.
• Fraud or forgery: If the Will was forged or created through deceit, it can be contested.
• Ambiguity or unclear terms: If the terms of the Will are unclear or ambiguous, it may lead to disputes among beneficiaries.
• Failure to provide for dependents: Family members or dependents who feel they have not been adequately provided for in the Will may challenge it.
• Improper execution: Wills must be signed in the presence of two witnesses and meet certain legal formalities. If these are not met, the Will could be disputed.

Disputing a Will involves various legal steps. Typically, it begins with gathering evidence and seeking legal advice to assess the validity of the challenge. The process may involve negotiation, mediation or court proceedings, depending on the complexity of the dispute and the willingness of parties to reach a resolution.

We will try to resolve matters through a method of alternative dispute resolution (ADR), such as negotiation or mediation, before proceeding to court. Most matters do not need to go all the way to a trial.

Usually, each party involved in the dispute is responsible for their own legal costs while the matter is ongoing. If the dispute is resolved outside of the court process, for example through mediation or negotiation, the parties can agree between themselves how the legal costs will be dealt with. If the matter goes to court, at the end of the proceedings the judge would decide who is responsible for the legal costs. Typically, the losing party pays the winner’s fees. There are occasions in which the legal fees can be recovered from the deceased’s estate.

Contact the team

Here’s how to get in touch if you have any questions at all or would like to speak to us about your enquiry. Please complete the form below and one of our experts will get in touch to discuss how we can help.

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