What are the most common reasons for contesting a Will?

Distributing the estate of someone who has died is a process that sadly often results in legal disputes between family and friends.

This is particularly the case if they feel that they haven’t been included in the Will and ought to have been or have been ‘short changed’ in some way. This can lead to family arguments and even a challenge to the Will itself.

But under what conditions can a Will be challenged and how do you contest a Will?

Here, we take a brief look at the five most common situations where a Will might be challenged.

1. Failure to comply with formalities

For a Will to be valid, it must be written and signed in the presence of two witnesses, neither of whom can benefit from the Will. If there is evidence to suggest that any of these conditions have not been met, it will be possible to contest the Will.

2. Lack of capacity

A Will can only be legally made by an individual who understands the significance of what they are doing and the consequences to their estate. This means they understand how the estate will be divided up and who will benefit after they have died. It ensures that the Will is made by an individual who has the mental capacity to do so. If there is any doubt over someone’s mental capacity at the time their Will was prepared, it can be challenged.

In recent years, it has become one of the most common circumstances for contesting a Will, largely due to the increasing number of dementia diagnoses among the elderly.

3. Undue influence

Undue influence may rise when someone has put pressure on the person writing the Will to include clauses or bequests that they would not have included if they were writing the Will free of any outside influence. As well as being mentally competent, the Will-maker needs to make decisions by themselves and without any coercion. If someone else – whether they are a beneficiary of the Will or not – tries to pressurise the Will-maker to change the contents of a Will, it can justifiably be challenged.

4. Financial maintenance

This is probably the biggest single factor for contesting a Will. If an individual was financially dependent on the deceased when they died (for example, a child or spouse) then it may be possible for them to challenge the Will, if they think that the Will doesn’t make ‘adequate provision’ for them.

To do so they must meet the following two conditions:

• the claim must be made within six months of the Grant of Probate being issued
• the claimant must meet the criteria for a claimant. This means they are either a spouse or civil partner; a former spouse or civil partner who has not remarried; a co-habitant who had lived in the deceased’s house for two years prior to their death; children of the deceased; any other individual who was financially maintained by the person who has died before their death.

5. Fraudulent Wills

A Will can be challenged if there are doubts over the legitimacy of either the Will or a signature. If the Will itself or a signature may have been forged, it is open to the challenge.

How to contest a Will

Usually, the most important factor in contesting a Will is time. The earlier you are able to begin the process, the better.

It is sensible to get help from a legal expert who specialises in contested Wills as soon as possible. This is such a complicated field that it’s almost impossible to make any headway without specialist legal help. If you feel you have legitimate grounds to challenge a Will, whether for financial reasons or because there’s doubt that the person made the Will with the full understanding of what they were doing, then the first thing your solicitor will do is request a copy of the Will from the executor.

After this, a letter of claim can be filed contesting the Will. This will need to detail the reasons why the person is challenging the Will in the first place which is usually for any one of the reasons listed above. One of the most common reasons is that a dependent, such as a child or direct relative, feels that the Will does not make ‘reasonable provision’ for a spouse or children.

Even if the claim goes to court, there is no guarantee that the court will overturn the bequests laid out in the original Will. If they find that the Will makes adequate provision for a spouse or child, and that the person was in their right mind when they made the Will and was not subject to any coercion, then the original Will stands.

Conclusion

Contesting a Will can be a long and complex process that requires a great deal of specialist expertise and experience. Due to the extremely personal nature of the events surrounding inheritance, it’s a process that’s typically both emotionally charged and difficult to approach without the required impartiality.

Click here to read more information on our dedicated page, or to enquire about contesting a Will, please contact our specialist Contentious Wills and Probate team, led by Polly Stephenson on polly.stephenson@ashtonslegal.co.uk or call 01473 261356.