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If you are a 'disappointed beneficiary', grief may soon give way to confusion, regret and even anger when someone you thought was close to you dies and fails to leave you anything in their will, or not as much as you thought they would.
Concerns may arise if you feel the will does not reflect the wishes of the deceased, or they were pressured to make the will or did not have sufficient mental capacity to make it. Family issues can emerge after years of resentment or simply through lack of communication.
If your challenge is successful and the will is declared invalid, the previous valid will stands in its place. If no such will exists, the rules of intestacy will apply.
In some circumstances making a claim under the Inheritance (Provision for Family and Dependants) Act 1975 is the best approach to take. If you are eligible to make such a claim, even though the will is valid, you may be able to argue that it does not make reasonable financial provision for you given the nature of your financial dependency upon the testator (the person who made the will) and your own financial circumstances.
Alternatively, if you relied on a promise of inheriting property to your detriment and that inheritance does not materialise in a will, you may have a claim in proprietary estoppel.
Contesting a will is emotionally challenging meaning that objective legal advice is important. Access Legal will encourage the parties to try and resolve the dispute through negotiations or mediation and avoid the need for court action if possible.
How do I contest a will
You will need evidence in support of your claim.
If you are arguing that the testator did not have sufficient mental capacity to make a will, it will be necessary to obtain their medical records and perhaps a report from an expert witness such as a psychiatrist to support this.
In a case of undue influence, strong independent witness evidence of coercion will be crucial to your claim. Undue influence can take many forms ranging from threats or pressure to physical violence. It is not unlawful to put pressure on a testator, but pressure to such an extent that it overbears the testator's own wishes may be considered unlawful. Each case is different and will be judged on its individual facts.
In a claim for want of knowledge and approval, evidence that the testator probably did not understand the effect of the will they made or the extent of the property they were disposing of will be necessary, and these claims are often run alongside claims for a lack of testamentary capacity.
Gaining access to the files of the deceased's solicitor may also prove useful as they should have kept notes concerning their client's well being when there is any doubt about capacity.
Access Legal can help you obtain a copy of the file from the solicitor that drafted the will is important as this will contain useful evidence as to the circumstances in which the will was prepared, who was present, and what instructions were given.
You cannot challenge a will under Scottish or English law simply because you are unhappy with its contents. You can however challenge its validity, which may mean that you inherit under a previous will or the rules of intestacy.
In England, the validity of a will can be challenged on the grounds of undue influence, lack of testamentary capacity, want of knowledge and approval and lack of due execution.
In order for a will to be valid in Scotland, the testator has to be over 12 and must sign every page of the will in the presence of one witness (who can also be a beneficiary).
In England and Wales, the testator has to be over 18 (or 16 and in active military service) and must sign the will in the presence of two witnesses.
It is also important that the testator was of sound mind and was fully aware of the meaning of the document at the time the will was made (i.e. had what’s called testamentary capacity) and that they were not being heavily or unduly influenced and coerced by another person when making their will.
You may have a case for contesting or challenging a will if you can prove a lack of testamentary capacity or demonstrate undue influence. These concerns frequently arise in death bed wills (i.e. wills made literally days or hours before death). Any will 'thrown together' at the last minute in desperate or urgent circumstances can give rise to the possibility that its contents might not be a careful and considered expression of the testator's wishes and can therefore be contested.
More about contesting a Will
A mistake may have been made in the drafting of a will meaning it does not properly express the wishes of the person who made it. If this mistake adversely affects you, it is possible to apply to the court for the will to be amended (known as rectification) within six months of the date of the grant of probate.
Research conducted by the Legal Services Board (LSB) shows that 20% of all wills contain mistakes that could invalidate them thanks partly to the use of DIY will kits available in supermarkets, chain stores and on the internet. While DIY will kits are probably adequate for a testator (the person making the will) with very simple affairs, they are deeply unsuitable for anyone with complicated finances, an extended family circle or a larger estate.
The Administration of Justice Act 1982 allows a will to be rectified if a court is satisfied that it does not express or carry out the testator's true intentions. There are however only three possible grounds for the court using this power to rectify a will:
My work involves disputes such as challenges to the validity of a will, claims for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975, claims for proprietary estoppel, disputes with executors and professional negligence claims.View full profile
I am National Head of the Personal Injury team in Access Legal Solicitors, I have been a personal injury lawyer for over 26 years and I act for individuals who have sustained injuries that have had a significant impact on their quality of life and a lasting impact on their families.View full profile
Access Legal's dedicated team have helped many clients to contest a will and have also produced a comprehensive guide to contesting a will which we hope will answer your questions and provide a clearer picture.Why Access Legal