How can a will be contested?

Categories: News

Fiona Mainwaring, Head of Wills and Probate at ORJ, explains how and when a will can be contested after a death.

Will disputes are on the rise, with as many as 10,000 people in England and Wales embroiled in legal action over inheritance every year.

In 2021-22, 195 disputes went in front of judges, up from 145 in 2017 – but that is just the tip of the iceberg, with the vast majority of cases settled out of court.

This increase in post-death disharmony can be attributed to numerous societal factors, including rising property prices leading to more valuable estates and increasingly complex family dynamics.

The ageing population has also given rise to challenges to wills based around mental capacity, while increased awareness around legal remedies may also be a factor.

The main legal grounds to contest a will are:

Lack of Testamentary Capacity

A person must have been of sound mind at the time of making the will. If someone suffered from dementia, Alzheimer’s or any mental illness affecting their decision-making, it might be the will can be challenged.

Capacity is not a memory test. A testator can have poor memory recall but still have sufficient capacity. 

If sufficient doubt is cast over the testator’s capacity, the burden falls on the supporters of the will to prove the testator was of sound mind.

Lack of Due Execution

A will must conform with the legal stipulations of the Wills Act 1837, namely:

• It must be in writing.

• The testator must sign it.
• The signature of the testator must be witnessed by two people, who also sign it.

If any of these steps were not properly followed, the will can be contested.

Undue Influence or Coercion

Undue influence is when excessive pressure or coercion is used to persuade someone to change their will.

This argument is rarely successful since there is a fine line between offering someone advice about their will and overstepping the mark for personal financial benefit.

Undue influence tends to involve family members or someone in a position of trust, such as a carer. For example, the testator’s child may create an isolating environment for their parent to manipulate them into changing their will in their favour.

The judge must ultimately decide whether the testator’s free will was compromised.

Fraud or Forgery

Forging a will can carry a prison sentence of up to 10 years, so substantial evidence is required to use this as grounds for challenge.

Fraud can involve impersonating someone to create or alter a will or, more commonly, claiming no will exists by hiding or destroying the document after death.

Forgery covers deliberate acts to falsify a will, such as forging someone’s signature. Handwriting experts are often drafted in to determine whether this has happened.

Lack of Knowledge and Approval

The person making the will must properly understand and approve its contents for it to be valid. Being able to read the document alone is not enough.

Evidence is crucial when contesting a will on the grounds of lack of knowledge and approval. Medical records that demonstrate poor mental or physical health can be used, along with evidence of poor literacy or language.

Rectification or Construction Claims

If the will contains mistakes due to a clerical error or does not accurately reflect the testator’s intentions, a claim can be made to rectify or interpret it correctly.

Inheritance Act 1975 Claims (Failure to Provide for Dependents)

Under the Inheritance (Provision for Family and Dependants) Act 1975, certain people can challenge a will if they were financially dependent on the deceased and were not reasonably provided for, such as:

• Spouses or civil partners
• Ex-spouses (if they haven’t remarried)
• Children (including adult and adopted children)
• Individuals who were financially maintained by the deceased

These contests sometimes hit the headlines on occasions where a child or partner has been left out of a multi-million-pound will.

Contesting a will – or defending a will – can be notoriously difficult and expert advice is always recommended.

Contact ORJ today to discuss the best way forward.