When Should You Challenge a Will?

Fundamentally, challenging a Will is easier if you have strong evidence to support your claim. However, as inheritance disputes continue to rise, expectations of easy financial gain do, too. Hopefully, our brief overview will shed some light on a complex and often confusing subject.

Testamentary Freedom

Under English and Welsh law, an individual can leave their estate to whomever they choose, even if this is not what family and friends expect. When an unusual bequest is made according to the deceased’s wishes, it isn’t typically grounds for challenging their Will.

So, what are the grounds for challenging a Will?

1. Lack of testamentary capacity

Often referred to as ‘being of sound mind”; a person must understand the nature of a Will and its effects, the extent of his or her property, and. the moral obligations that he or she ought to consider. This area is tricky. The burden of proof lies with the person contesting the Will, and medical evidence is essential.

2. Undue influence or coercion

Undue influence is where a person has been coerced into making a Will they didn’t want. Proving this isn’t easy either, as the line between advice and coercion can be slim. Invariably, influence is exerted privately, so evidence can be hard to come by. The Court must be convinced that the deceased has been pressured, or even bullied, into it.

3. Lack of knowledge or approval

This differs from testamentary capacity, as the person could likely make the Will; they just weren’t fully aware of what it contained. A challenge must be based on solid evidence. It’s difficult to prove if a solicitor prepared the Will, as solicitors usually read through the document to ensure the person making the will understands and is happy.

4. A poorly prepared or incorrectly executed document

A valid Will must be in writing, signed by the person (over 18) making the Will and witnessed by two people in front of the person whose Will it is. Usually (the date of execution is included as well. Invalid or incorrect execution often occurs with homemade or online DIY Wills. This may seem easier to prove, but as case law demonstrates, ‘the strongest evidence’ is required. The person challenging the Will must show how they know the document was incorrectly executed. Otherwise, they’re unlikely to succeed.

5. Fraud or Forgery

If the Will was drawn up by a solicitor and witnessed in front of them, then the Court is unlikely to support an allegation of forgery. Otherwise, proving fraud takes more than circumstantial evidence. Handwriting experts and discrepancies between signatures may help, but it’s tough to establish fraudulent behaviour without physical evidence proving any wrongdoing.

6. Lack of financial maintenance

If you’ve been left without sufficient money to live after the death of a loved one, you may be able to contest the terms of a Will. You must be eligible to claim and prove that ‘reasonable financial provision’ has not been made. In assessing a claim, the court will look at an individual’s financial resources and needs, both now and in the foreseeable future.

Our Advice

Sometimes, you may have little choice but to challenge the Will of a loved one if have genuine concerns. However, this type of litigation can be expensive because of the work and investigation involved, and the success of any challenge depends on the reason and the quality of the evidence.

But one thing is sure: getting advice from a solicitor as early as possible is vital. Our specialist lawyers are highly experienced in this area, so if you need more information or advice, please get in touch with us. We’re here to help.

Please note that all views, comments or opinions expressed are for information only and do not constitute and should not be interpreted as being comprehensive or as giving legal advice. No one should seek to rely or act upon, or refrain from acting upon, the views, comments or opinions expressed herein without first obtaining specialist, professional or independent advice. While every effort has been made to ensure accuracy, Curtis Parkinson cannot be held liable for any errors, omissions or inaccuracies.

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