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What evidence do I need to contest a will?

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The grounds to challenge a will

There are specific grounds on which you can challenge a will as being invalid. We’ve covered them before, but it’s always worth repeating. Briefly, you are looking at the following:

  • the ‘mental capacity’ of the person making the will (the ‘testator’),
  • whether there was ‘undue influence or coercion’,
  • lack of ‘knowledge or approval’ of the contents of the will by the testator,
  • whether the will satisfies the requirements of the Wills Act 1837, and
  • whether there was fraud or forgery.

You may have a suspicion that all is not as it seems, but do you have the evidence necessary to contest a will?

Taking the decision to challenge a will isn’t an easy thing to do. However, if you are concerned that the will of your loved one is invalid for some reason, this may be the right thing to do. However, challenging a will isn’t always straightforward, so in this blog, we look at some of the evidence you might need to successfully challenge a will.

Evidence that a will is invalid

Of course, it maybe that the first time you become worried about the will in question is after the person has died and you discover that it contains provisions that give you cause for concern. At that point, the best evidence – from the person who made the will – is no longer available. Without the direct testimonial of the testator, there are other forms of evidence that can help you build a successful case to challenge the validity of the will concerned.

Letters and other documents

You may not be able to speak directly to the testator to establish what was going on at the time he or she made the will you are looking to challenge, but there may be other documents that reflect his or her intentions, state of mind or other concerns at the time the will was made. A diary that was kept by the testator can potentially reveal a number of things relating to different types of challenge. It could reveal the state of mind of the testator. It could mention bullying or other behaviour by a person in relation to making the will in a particular way. It could also reveal what a testator’s true intentions were in relation to how his or her estate should be distributed.

Medical notes

Particularly relevant if you are seeking to contest a will on the grounds that the testator did not have mental capacity to make the will. Medical notes may reveal whether or not the testator was suffering any illness or condition at the time he or she made the will, and the extent to which this condition might have impacted on the testator’s understanding of what he or she was doing.

Witness statements

Another important piece of evidence will be the witness statements of people who knew the testator at the time the will was made – and beforehand. Examples of useful witnesses will include

  • The solicitor who drew up the will
  • The people who witnessed the will
  • People involved in the care of the testator (if relevant) at the time the will was made
  • People who knew the testator and can talk about his or her state of mind when the will was made, what their behaviour was like
  • People who have known the testator in the past and could give evidence about the testator’s intentions regarding his or her estate.

In a recent blog when we looked at a challenge to a will brought on the grounds of mental capacity, which ultimately failed, the judge found evidence from people who had holidayed regularly on the testator’s farm helpful: this was evidence that the testator had regularly referred to her intention to leave her farm to her son – an intention that was born out in the will that was being challenged. The exact evidence that will be necessary to challenge a will always depends on the particular circumstances and the particular grounds on which you are contesting the will.  Your specialist legal adviser will be able to discuss the circumstances of your claim and talk to you about the kind of evidence that will be helpful.

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