Contentious Probate: When to dispute a Will

The death of a loved one is always a difficult and traumatic time. Many things need to be organised and done all at a time when you are grieving. This is a very stressful time for you, your family and your loved ones.

A disputed Will can make this period considerably worse. If you have been left out of a Will or not given your fair share then your only route is to dispute it. If someone disputes a Will in which you receive the bulk of the estate then you will need to defend it. This is a difficult and complex situation but sometimes it is necessary.

When can I dispute or contest a Will?

There are only certain circumstances in which you can dispute a Will. These are when:

1. The Testator did not have the capacity to make the Will

In order for the Testator to have capacity they must have understood the nature of the Will and its effect, have some idea of the extent of the property of which they are disposing under the Will and be aware of who they would be expected to provide for under the Will even if they choose not to provide for them.

2. The Will was not completed properly

In order for a Will to be valid it must be:

  • Signed by the Testator or someone else directed to sign on behalf of the Testator in the Testator’s presence;
  • The Testator’s signature must have been witnessed by at least two independent witnesses who were present at the time the Testator signed the Will and who also signed their name and address; and
  • The Testator must have intended to give effect to the Will by signing it.

A common error in respect of Wills that have not been professionally prepared is that the Will has not been witnessed by two people who have also completed their name and address or that the witness are not:

  • Over 18;
  • Not related to the Testator; and
  • Not a beneficiary under the Will.

3. The Testator had a lack of knowledge or did not approve of the content of their Will

A common approach to challenging the validity of a Will is to assert that the Testator did not know or approve its contents. For a Will to be valid, the Testator must have been fully aware of the contents of the Will and approved of it.

This can involve circumstances where the testator was very ill when they signed their Will (particularly if this involved a significant departure from an earlier Will), when the beneficiary benefitting from the Will was closely involved in its preparation or if a solicitor was not involved in the preparation of the Will

4. The Testator was placed under undue influence in making the Will

In order to be able to claim that the Will is invalid due to undue influence you will need to be able to show:

  • There were suspicious circumstances regarding the creation of the Will; and
  • The Testator was coerced into making the Will; or
  • The Testator was not aware of the contents of the Will.

5. The Will is forged or fraudulent and is not the Testator’s last Will and Testament

There are two ways you can show that a Will is a forgery:

  1. The Testator’s signature is a forgery. Should this be questioned you will need evidence of the Testator’s signature (this should be obtained from an independent third party wherever possible) in order for a handwriting expert to be instructed in order to give evidence upon whether or not the Testator signed the Will; or
  2. A beneficiary lied to the Testator which resulted in the Testator removing another beneficiary from the Will.

If the Will is found to be a forgery, then either:

  • The last valid Will applies; or
  • If there is no valid pervious Will, then the rules of intestacy apply.

6. The Will contains a clerical error or the person preparing the Will failed to understand the Testators wishes

A clerical error may be included within a Will which was not spotted by the person drafting the Will or the Testator.

It may also be possible that the person drafting the Will failed to understand the Testator’s instructions and the Testator did not understand that these instructions had not been placed into the Will.

In these circumstances if you have evidence that the Will did not comply with the Testators instructions, you can apply to the Court for rectification of the Will.

If you would like advice or support around contesting a Will, please contact or call the office on 01283 526 200.

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