If you are making a Will there are certain formalities which must be satisfied for it to be valid:

 

 

If any of these are not satisfied then the Will is automatically invalid.

 

The testator must also have sufficient mental capacity. Meaning he must be able to understand what a Will is and that he is making a document that deals with all of his assets on death. He must also be aware of the contents of the Will and approve of what is said.

 

If a family member has been cut out of a Will and they wish to contest this, provided that the Will was made following the correct procedure as described above and there is no issue over the testators mental capacity, then they must show that the testator either didn’t know the content of the Will or that he had not approved the same before the Will was made.

 

Alternatively, there is the ability to make a claim if the testator has maintained a family member or someone else in a prescribed relationship, and no proper provision has been made for them in the will.

 

The burden of proof changes where the Will was made in unusual circumstances. If this is the case then the onus is on the person seeking to rely on the Will to prove its validity. They must show that the testator was not under any undue influence at the time of making the Will. Examples of where this might occur include the testator’s Will being written by the main beneficiary, the Will being written by the testator’s carer or a child putting pressure on the testator to cut out their siblings or other relations where the testator would not normally have done so.

 

There are also two further possible grounds for contesting a Will. First someone could seek to rely on the ground of forgery but this is very difficult to prove and therefore rarely used. Secondly a person has acted to their detriment because of a promise made to them by the testator that they will receive something under the terms of the will - this gives them a right to claim fair share of the estate. The court must then decide whether or not there is a valid claim and if so how to bring about fairness, which could involve a lump sum payment or an interest in or ownership of the property included in the estate.

 

 

To contest a Will you  need to seek the professional advice of a solicitor as soon as possible after they learn of the existence of the Will.

 

The first step would be to enter a caveat with the Probate Registry. This would prevent the executors of the Will from obtaining a grant of probate. If a grant of probate were to be obtained the executors would be able to administer the estate of the testator in accordance with the provisions set out in the Will.

 

The process of contesting a Will is lengthy and expensive. Obviously this depends on the complexity of the Will/estate that is being contested.

 

It is important for the person contesting the Will to find out whether any former Wills exist and/or what their position is with regards to the rules of intestacy before they begin any sort of claim. The reason for this is that if they are successful in any claim and the current Will is deemed invalid then any former Will that was validly made would be used instead. Obviously if there are no former Wills then the rules of intestacy will be applied. If under either of these routes the claimant would still not benefit from the testators estate then there would be little point in them contesting the most recent Will.

 

Although mediation is an option in the resolution of any disputes over Wills, most claims have to be heard in front of a Judge. If someone makes a claim but is unsuccessful it is highly likely that they will have to pay towards the costs of the other party on top of the fees they would have to pay their own solicitor.