5 ways to challenge a will
If you have been disappointed by the contents of a will, it’s natural that you will want to take action to challenge the will and rectify the situation. Sometimes it will be enough to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 to for ‘maintenance’. In other cases, it will be necessary to show that the will was invalid and so should not stand. In order to challenge a will as being invalid, there are a number of possibilities open to you, depending on the circumstances in which the will was made. Here. We look at 5 ways to challenge a will.
If you want to challenge a will because of ‘undue influence’ you will have to show that the person who made the will was influenced by someone else to make the will in a particular way – and crucially. In a way that did not reflect the true intentions of the person who made the will.
If you are faced with a will that leaves property and assets in a way that appears suspicious – for example leaving the majority of the assets to one person at the expense of others who would seem to be equally deserving – you may well feel that someone has put pressure on the will maker. To challenge a will on the ground of undue influence is not always easy. Obtaining evidence of undue influence can be difficult – but it’s not impossible.
Lack of Testamentary Capacity
‘Testamentary Capacity’ is a term used to describe someone who knows what property and assets they own, and the people they should potentially leave their property to: a spouse or partner, children, grandchildren. Provided someone is aware of this, they are said to have testamentary capacity.
Someone who does not have this awareness does not have testamentary capacity and cannot make a valid will. It could be due to a neurological condition such as dementia, or another reason. The important question is whether the person had testamentary capacity at the time they made the will. If a solicitor has been involved in making a will, particularly for an older client, they should take steps to establish whether he or she has the necessary capacity.
Challenge a will – Lack of knowledge and approval
To challenge a will on this basis, you will need to show that the Testator did not know what was in the will, and approve it. These cases will generally centre around whether the Testator checked the will or read through it after it was prepared and before signing it. If the Testator has not done so, they will not have had a chance to check if the will reflected their true intentions. The solicitor might have made a mistake as to the instructions. There is also the possibility that someone else might have brought about changes to the will.
Failure to execute the will properly
There are strict rules around how a will must be executed in order for it to be a valid document. The will must be signed by the Testator in the presence of 2 witnesses who will not benefit under the will. Where the will is executed makes no difference, provided the execution itself is completed properly. If the Testator has signed the will without the witnesses being present, the Testator can acknowledge his signature before the witnesses, who then sign the will.
If a will has not been properly executed, it is invalid. The previous will (or if there is no other will, the rules of intestacy) will then apply to distribute the assets of the estate.
If a will has been forged, it is invalid. Some forgeries can be very convincing, but there are forensic investigations that can be carried out to validate (or otherwise) a will that you are concerned about.
As already mentioned, if you succeed in challenging a will, it will be declared invalid and the previous will, or if no will, the rules of intestacy will apply.
Talk to us if you are thinking of challenging a will. We are experts in will disputes law, and can usually act on a ‘no win no fee’ basis.