0370 1500 100

A Guide To Contesting A Will

A Guide To Contesting A Will

In English law the court will look to give effect to the terms of the deceased's final will.

However, there are a number of potential challenges to the last will of the deceased, 3 of the most common are detailed below.

The Will is Invalid due to Lack of Testamentary Capacity

The deceased could have made as many wills in their lifetime as they wish, but, all things being equal, it is the final one which will decide how the estate is divided-up and the dispute resolved.

In order to execute a Will a testator must have the requisite mental capacity to make a Will.

As a result the person making the Will:-

  • (i) Must understand he is making a Will
  • (ii) Understand that the effect of the Will is to dispose of his assets after his death.
  • (iii) Understand (in a broad sense) what assets are disposed by the Will.
  • (iv) Must be able to review the beneficiaries who may have a claim on his estate.
  • (v) Must not be suffering from a mental illness which affects his ability to decide the destination of the estate.
  • (vi) Must not suffer from a delusional mental illness which has the effect that the disposal would not have been made but for the delusion.

If it can be shown that the deceased failed to satisfy any of the above elements at the time they provided instructions with regard to the Will, the Will will be invalid for lack of capacity.

To avoid challenges to a will on the grounds of lack of testamentary capacity, there are a number of guidelines which should be followed:

  • (i) Where a testator is very old or ill, relatives should consult a solicitor in advance about formalities for executing the will and obtaining medical evidence.
  • (ii) As a matter of good practice, courts recommended that wills drawn up for old or seriously ill people were witnessed by doctors, who ought to record their examinations and findings.
  • (iii) Ensure that witnesses to a will are reliable, competent and likely to live longer than the testator. If there is a dispute, they may be required to confirm their opinion of the testator's capacity.
  • (iv) If you marry, seek legal advice about a will, as marriage automatically revokes an earlier will.
  • (v) Consult a solicitor if you doubt the deceased's capacity or are suspicious about the circumstances surrounding a will's execution. Irwin Mitchell's specialist Will and Trust Dispute team has significant experience in this area and has successfully run a number of disputed will cases to trial

A claim under the Inheritance (Provision for Family and Dependants) Act 1975

The law accepts that in certain circumstances the final will may not have properly provided for certain people. In circumstances in which a person has not received 'reasonable financial provision' the law can step in to change the distribution of the estate.

Under the Inheritance (Provision for Family and Dependants) Act 1975 the following class of people are entitled to claim against the estate;

  • (a) Spouse or civil partner of the deceased;
  • (b) Former spouse or civil partner of the deceased
  • (c) Child or a person treated as a child of the deceased
  • (d) Any person who was 'maintained' by the deceased
  • (e) Any person living as a husband/wife/civil partner living in the same household as the deceased for 2 years prior to death ("co-habitee")

With more and more people choosing not to marry such claims are becoming more common place. In assessing any claim, the court will take into account the financial resources and needs of the claimant both now and in the future, the obligations and responsibilities the deceased had towards the claimant and existing beneficiaries.

The Inheritance (Provision for Family and Dependants) Act 1975 sets a 6 month time limit for bringing this type of claim, commencing on the date of the Grant of probate/Administration. It is therefore important to take early specialist advice. It is often the case that an early settlement can be agreed between the respective parties.

A Claim for Proprietary Estoppel

Such claims typically arise in a farming context in which children often work on the farm property for a number of years on the understanding that they will inherit on the death of their parent.

In order to succeed in the claim, it is necessary for a claimant to prove that the deceased, by their conduct, either by express representation or a failure to disabuse the claimant of the misapprehension, encouraged the claimant to believe that they would have a right over the deceased's estate and that the claimant acted to their detriment (by working on the farm/caring for the deceased) in reliance of the promise.

If you are involved in a will dispute or need further information about contesting a will, please visit our Will, Trust & Estate Disputes section