challenging a will may be the only way to achieve justice

Things to know before challenging a will!

Challenging a will can be a daunting undertaking. In this blog we’ve put together some useful information that can help you understand more about what it means.

A ‘will’ is an important legal document

A will is a legal document which is made by an individual before his or her death. It states how their property, including money, any property or land they own, and anything else, should be left upon their death. The individual making a will is known as the Testator. Those benefiting from a will are known as Beneficiaries. Wills are the easiest and most reliable way of dealing with your personal assets and chattels after death. However, problems can arise when one or more individuals are not content with how property has been divided up in a will. When an individual who is either connected to the will or not is unhappy with the division of the estate, he or she can ‘contest’ or ‘challenge’ it.

There are 2 main ways to challenge a will

A beneficiary can either challenge the validity of a will, or how property is divided up in a will.

Challenging the validity of a will

A claim challenging a will because it is not valid means that you will be arguing that the will should be ignored and property and the estate should be divided up according to a previous will – or if there is no previous will, then the rules of intestacy.

To do this, there must be evidence of one of a number of things:

  • The will was not correctly executed
  • The deceased lacked capacity to make a will
  • The deceased lacked knowledge and approval of the will
  • The deceased was unduly influenced or fraud has taken place
  1. Lack of testamentary capacity

The test in Banks v Goodfellow states that a person making a will must understand that they are making a will and the effect of it. Secondly, they must know the nature and value of their estate. Thirdly, they must understand the consequences of including and excluding certain people under their will. Lastly, they must not be suffering from any ‘disorder of the mind’ which may influence their views.

  1. Lack of valid execution

This is also known an invalidly created/executed will. A will is invalid if it fails to meet the requirements of s9 of the Wills Act 1837:

  • The will must be in writing and signed by the testator
  • The intention of the testator must be to give effect to the will by signing it
  • The will must be signed in the presence of at least two witnesses, who must attest and sign the will in the presence of the testator

The aforementioned witnesses must be ‘disinterested’ individuals. This meaning that they must not benefit from the will in any way.

  1. Lack of knowledge and approval of the will

The individual must know that they are signing the will and are aware of the contents of the will.

  1. Undue influence

It must be shown that the testator was subject to ‘actual undue influence’. The evidential requirement for this is high and there must be no other reason to explain the terms of the will.

Challenging the contents of a will

To challenge the contents of a will, you can use the Inheritance (Provisions for Family and Dependants) Act 1975. Although a Testator is usually free to leave his or her property as he likes, in some circumstances, the courts will step in and redistribute the assets left in the will.

To do this, you have to have a close connection with the Testator and if not either married/civil partnered or a child of the deceased, will need to have been living with him or her or ‘maintained’ by him.

Challenging a will can be a lengthy process

As with any legal procedure, challenging a will can be a lengthy process. Disputes can go on for many years. It may be possible to resolve matters more quickly through negotiation or mediation, which can offer a number of benefits in addition to a quicker resolution. Mediation can be cheaper than going to court. It can also offer more flexible solutions agreed between you and the other side.

It won’t always be clear what the outcome will be

If you succeed in challenging the validity of a will, the result will be that the will is declared invalid and the estate has to be distributed according to the last valid will. If there is no earlier will, the estate is distributed according to the rules of intestacy. It will be worth exploring what these options will mean before commencing a will dispute – you could end up in a worse position than you were under the will you are challenging.

If you challenge the contents of a will using the Inheritance Act 1975, and succeed, the court will have to consider what would be a reasonable amount for you to receive. This will depend on whether you were married or civil partnered to the Testator, or had some other connection to the Testator. Spouses/civil partners can be awarded what is reasonable ‘in all the circumstances’, while other successful challengers will receive what is reasonable ‘for their maintenance’.

Challenging a will can be expensive

The legal costs of challenging a will are not to be underestimated – and not only in terms of money, but time too. You must be completely sure you have enough evidence to back up your claim, and the process for achieving this is timely, expensive and potentially detrimental to your own emotional well-being and stability. You must be sure that the contest is worth the potentially negative consequences attached to the process.

On the other hand, you may be able to fund the challenge through a no win no fee agreement, and look to resolve things through mediation rather than going to court. Considering both these options can make the process far more achievable, and less daunting, especially if you choose a specialist firm of solicitors, experienced in will contests.