The loss of a loved one will always be fraught with emotion which can be compounded by discovering that the deceased person’s Will differs from your understanding of their wishes. This blog explores the various grounds for contesting a Will. Claims by relatives who believe they should have been beneficiaries who are not included in a Will are not considered in this post but will covered exclusively in one of our next pieces.
There are various ways a Will may be challenged and some of those key issues are explored further below:
Capacity: It may be possible that an individual lacked mental capacity due to an impairment or disturbance of the mind. However, since 1 April 2007 the presumption is that an individual did have capacity. Therefore, the onus is on the person challenging the Will to establish a case that the person did not have capacity with evidence such as medical records or a suitable expert report.
Understanding: In some cases, it may be that the individual could not properly understand and approve the Will. This may be because of factors such as a hearing, speech or visual impediment, low levels of literacy or perhaps they were frail and vulnerable.
Undue Influence: Unfortunately, in some circumstances it may be that the individual has been influenced or coerced into making a Will, out of keeping with their genuine wishes. In such circumstances it must be established that the individual acted against their own volition.
Forgery and Fraud: If it can be proven that a Will has been forged then it will be deemed invalid. On occasion it may be necessary to instruct a handwriting expert to assess the original document.
Rectification: In some circumstances, the Will may not reflect the true wishes of an individual due to a clerical error or a misunderstanding as to the individual’s intentions. In these types of case, the Will may still be valid but could potentially leave the drafting professional open to a claim of negligence.
In all of the above circumstances, it may be possible to contest the Will. However, specialist advice should be sought. The preservation and preparation of evidence early in a matter is often imperative in establishing the merits of any prospective case. If a Will is found to be invalid, careful analysis is necessary to ascertain whether a previous Will should take precedence or whether the estate could be subject to the rules of intestacy which apply when an individual dies without leaving a Will.
Our new Problem Probate Drop In Clinic runs from Thursday 19 January 2023. Over the next 8 weeks Aaron Pottle and Gregory John will be offering free no obligation 15 minute consultations in our Braintree office on a Thursday morning between 10am and 1pm while also offering online Q&A’s, so keep an eye on our socials as well.