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Contesting a Will

Contesting a Will

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Contesting a Will: the grounds

There are a number of grounds for contesting a Will. These include:

On this page you can find out about each of these typical claims. We also answer your frequently asked questions on this topic, such as the time limits for contesting a Will, whether you can contest a Will after probate and the costs involved in making a claim.

We can also assist you if you find yourself on the end of a contested Will claim.

Technical grounds for contesting a Will

There are six main 'technical' reasons for challenging a Will, as follows:

Lack of testamentary capacity

Lack of testamentary capacity

For a person to make a valid Will they must:

  • Be able to understand that they are making a Will, and the effect of making that Will.
  • Know the nature and value of their estate.
  • Understand the consequences of excluding/including certain people in their Will.
  • Not be suffering from a disorder of the mind that might influence their views.

These principles were set out in Banks v Goodfellow 1870 and although the law has developed since then, the principles are the same. Find out more.

Lack of valid execution

Lack of valid execution

There are a number of requirements for a Will to be valid as set out in Section 9 of the Wills Act – these include:

  • The will must be in writing and signed by the testator (the person making the Will), or signed by someone in their presence under their direction.
  • It must appear the testator intended by their signature to give effect to the Will.
  • The testator’s signature must be made or acknowledged in the presence of a minimum of two witnesses who are present at the same time.
  • Each witness must either attest and sign the Will, or must acknowledge the signature in the presence of the testator – although not necessarily in the presence of any other witness.
  • The choice of witnesses must satisfy the rules about who can and cannot witness a Will.

There is a legal presumption that a Will has been validly executed, unless evidence can be provided to show the contrary. Find out more.

Lack of knowledge and approval

Lack of knowledge and approval

For the Will to be valid, the person making the Will must have knowledge of, and approve, its contents. You can challenge a Will on the basis of lack of knowledge – even if the Will appears to be executed properly, and even if you know the testator was of sound mind. You would need to provide evidence that suggested the testator was not aware of the contents of the Will, or that there were some suspicious circumstances. An example might be if the Will contained a significant gift to someone who helped to prepare it. Find out more.

Fraud/forged wills

Fraudulent or forged wills

The Will can be contested if you believe it has been forged or some sort of fraud has taken place. This might be the forging of a signature, for example.

If someone led the testator to believe that certain facts were true and this influenced the contents of their Will, this could be fraud. For example, if Anna tells George that one of his children has stolen money from him, and as a result George leaves the child out of the Will, the Will could be invalid as a result of Anna’s fraud. Find out more.

Undue influence

Undue influence

You can challenge a Will if someone unduly influenced, coerced or put under duress the person who was making the Will. There is no presumption that just because someone in a position of trust receives assets from another person, that undue influence took place. You must show actual undue influence, where there must be no other reasonable theory to explain the terms of the Will. Find out more.

Rectification and construction

Rectification and construction

Sometimes a Will is drafted up by a lawyer that does not properly carry out the testator’s intentions. This could be either because of an administrative error or because the person drawing up the Will does not understand the testator’s instructions. A claim for rectification or a claim regarding the construction of the Will can be made. If it is not successful, a claim for professional negligence against the lawyer may be appropriate. Find out more.

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Latest from the blog:

  • Elderly cohabitee wins financial provision claim Posted on: August 8, 2018
    The Court of Appeal has upheld a High Court Judgement that a deceased's Will failed to make reasonable provision for a financially comfortable cohabitee's maintenance under the Inheritance (Provision for Family and Dependants) Act 1975.
  • Cohabitee entitled to share of Deceased partner's £1.5m estate Posted on: April 9, 2018
    In a recent decision, the High Court has ruled in favour of a woman who was left nothing from her late partner’s £1.5 million estate.
  • "My Dad rewrote his Will before he died" Posted on: May 22, 2017
    If a parent or relative dies & it is discovered that they changed their Will before death it may be possible to challenge the Will. Here we look at some common grounds.
  • The strange case of the Doritos bag Will Posted on: May 16, 2017
    A Court has dismissed a widow’s claim that a Will 'found in a Doritos packet' leaving her £550,000 was genuine.
  • Another day, another Will challenge Posted on: April 26, 2017
    We discuss why, despite a wave of Will challenges, it is still important to make a Will and keep it updated, and how you can avoid your own Will being challenged.
  • Could I challenge a Will? Posted on: April 25, 2017
    We look at the increase in challenges to Wills, the grounds on which you might contest a Will and how you would go about funding your claim.
  • Supreme Court delivers judgement in Ilott v The Blue Cross case (re: Ilott v Mitson) Posted on: March 15, 2017
    The Supreme Court today handed down its long anticipated judgement in relation to the case of Ilott v Blue Cross, concerning the Inheritance Act 1975.
  • Ilott case to be heard by the Supreme Court Posted on: December 12, 2016
    The Supreme Court will hear an appeal in the Ilot case today. The case concerns the estate of the late Melita Jackson who died in 2004 leaving the majority of her £486,000 estate to three charities, making no provision for her only child Heather Ilott.
  • Challenge to Will unsuccessful Posted on: November 1, 2016
    Last month, the case of Ames highlighted that not all challenges under the Inheritance (Provision for Family and Dependents) Act will be successful.
  • Ilott vs Mitson to be heard by Supreme Court in December Posted on: November 1, 2016
    The case of Ilott vs Mitson concerning a challenge to a mother's Will is to be revisited by the Supreme Court on 12th December 2016.

"I've been left out of a Will!"

Claims for 'reasonable financial provision' under the Inheritance (Provision for Family and Dependents) Act 1975

An increasing number of grown-up children are finding that they have been left out of their parents’ Wills. With people living longer than ever before, some parents are taking the view that with their adult children being financially stable, their money should instead go to grandchildren, friends or charity. However, the number of challenges to Wills is also increasing. If you did not receive a share of someone’s estate and you believe that you should have done, or you have good reason to believe that the share you received was smaller than it ought to have been (perhaps because they supported you financially during their lifetime), you may be able to claim under the Inheritance (Provision for Family and Dependents) Act 1975 for ‘reasonable provision’.
Find out more.

"I was promised a gift!"

If the Deceased promised you something and you relied on this but they then did not make the appropriate provision in their Will, you may be able to bring a claim.
Find out more.

"I'm owed money!"

If the Deceased owed you money, you may be able to make a claim against the estate.
Find out more.

"They left me a gift on their deathbed!"

If a dying person gifts something to you close to their death, this may override their Will. There are a number of conditions for the gift to be valid.
Find out more.