The act of contesting a will, also known as contentious probate which refers to any disputes arising regarding the administration of the deceased when they die, is becoming more common in the UK as family relationships grow more complicated and people have more wealth to leave behind after their death. But why would someone want to contest a will?
On the face of it, it may sound odd that someone would want to contest a will. A will is a document that outlines the wishes of the deceased, the testator, and how they want their estate and assets dividing up after their death, so contesting this can seem like you’re disrespecting the wishes of the deceased. But, in actuality, there are many reasons why someone may contest a will. You may have legitimate concerns regarding the way in which the will has been made.
Let’s take a look at the main reasons why a will may be contested.
The testator didn’t understand what they were signing
Someone who is making a will must be of “sound mind, memory and understanding” when the will is prepared and signed. The legal term for this is lack of testamentary capacity and specifies that the person must understand the content of the will. It can be summed up as the following:
- Understand the nature of the act and its effects.
- Comprehend and appreciate the claims that they want to effect.
- Understand the extent of property and assets which they are disposing of.
- Not be effected by any “disorder of the mind”. An example of this would be Alzheimer’s.
If you think that someone signing a will did not have testamentary capacity, such as changing their will later in life while suffering from dementia, a solicitor can help you contest the will.
The testator must not be signing under influence or coercion
This means that a person signing a will must not have done so due to pressure from a third party. The law covers various formats that it labels a coercion, such as physical violence and verbal bullying. It also covers instances where a sick person may have been verbally coerced into changing a will simply because they are not in a position to do anything about it. If you are contesting a will based on coercion, you must be able to answer the question of whether any conduct by third parties has overpowered the testators will.
The testator must have knowledge and approval of the will
If you believe that a will has been created in suspicious circumstances, but can’t prove that the testator has been influenced or coerced, a court must be satisfied that the testator completely understood and approved of the will. If a testator had testamentary capacity, it is assumed that they had knowledge and approval. However, there are some circumstances where it must be proved that they completely understand the will and they approve of its content. These are as follows:
- Deaf and/or dumb
- Inability to speak, write or is paralysed
- The will is alleged to have been signed by another person at the testators discretion.
The will must comply with the Wills Act 1837
Specifically, the will must comply with section 9 of the Wills Act 1837. The will is not deemed valid until the following conditions are met:
- It must be in writing and signed by the testator, or some other person in their presence who is directed to do so.
- The testator intended that their signature makes the will valid.
- The will is signed in the presence of two or more witnesses, present at the same time.
- Each witness must either attest and sign the will or acknowledge the testators signature in their presence. However, no form of evidence shall be necessary.
If you think these conditions haven’t been met, it is ground to contest the will.
The will must not be a forgery or fraudulent.
If you suspect a will to be a forgery or the person signing the will is not the person who the will pertains to, the will is deemed invalid.
All these conditions must be met for a will to be deemed valid. If you suspect otherwise, then a contentious probate solicitor can give you advice and help you prepare your case.