CONTESTING A WILL – BASIC PRINCIPLES (PART 1 OF 2)
This blog is the first of two discussing the basic principles that a potential claimant would need to consider if it appears they are likely to have a claim in relation to an estate.
In reality, there are three types of claim:
1. Firstly a claim against the legal validity of a Will;
2. Second a claim for a share of a near relatives estate under the Inheritance (Provision for Family and Dependants) Act 1975;
3. Thirdly, a claim that in effect, you already own a share of the estate.
Challenging the legal validity of a Will
Before we discuss the main claims that you can make against the legal validity of the Will, you must be aware of two important matters. The first is that to make the challenge it is not enough (or indeed essential) to be a near or close relative. You must simply have an interest in the outcome of your claim – in other words, if you are successful, you must be entitled to a share of the deceased’s estate. If not, you cannot proceed. This will mean either you must be entitled to a share under a previous valid Will or if none, by the rules of intestacy.
The second and more practical matter, is that it must be worthwhile doing. If the estate is very small or has been fundamentally dissipated already, then the benefit to you of the challenge must be worth the risk, cost and stress. By way of example, the costs of bringing such a claim to a trial can easily exceed £100,000 (for just one party!).
Well, here in very basic detail are the key elements to any challenge or contest against the legal validity of a Will:
- It hasn’t been made “properly” – in other words when it was “done”, those involved didn’t comply with section 9 of the Wills Act 1837 (http://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/section/9) For example, it wasn’t signed by the person making the Will in front of two witnesses who also signed it. Yes, this is the only “formality”!
- It has been revoked. A Will can revoked by another (subsequent Will), by the person who made the Will destroying it or by declaring an intention in writing to revoke it (which is then signed and witnessed in the same way as a Will). It is also revoked by marriage.
- When it was “made”, the person who made it didn’t have sufficient “mental capacity” to do so, didn’t know and approve the contents of the Will, or actually made the Will under the influence of another so that the terms of the Will reflected the wishes of that “other” person and didn’t represent his/her own true wishes. For more information about “legal testamentary capacity” please consider our earlier blog (https://www.willclaim.com/5-things-aware-claiming-lack-testamentary-capacity/) and the following article from the Law Society Gazette (https://www.thegazette.co.uk/allnotices/content/100844). Lack of knowledge and approval usually goes hand in hand with a claim that the person who made the Will lacked sufficient mental capacity to do so. Beware of relying solely on a claim of “undue influence” because it is extremely difficult to prove (the person influenced is dead and anyone involved is unlikely to “confess”). Very often the claims of undue influence that we are asked to consider rely on assumptions by the very person who is seeking to rely on this claim which is usually insufficient to prove it. Again, please consider our earlier blog on the subject at https://www.willclaim.com/proving-undue-influence-reason/.
If you consider that any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.