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Can you contest a Will?

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Can you contest a Will?

Can you contest a Will?

Can you contest a Will?

There are five main reasons for contesting a Will and these are;

#1 Not complying with the Wills Act 1837

#2 Undue influence or coercion

#3 Lack of testamentary capacity

#4 Lack of knowledge and approval

#5 Forgery or fraud.

#6 Reasonable financial provision

In this post, we’ll go through each of these in turn and also let you know what happens when you contest a Will.

#1 Not complying with the Wills Act 1837

The Wills Act 1837 is the legal underpinning of all of the case law around Wills.

There is a specific section, section 9, that covers the making of the Will and what is required.

This states that the Will must;

Be in writing and signed by the person making the Will

Be made with the intention of making a Will

Have a signature of the testator that is witnessed by two people that were present at the time the signature was made.

Be signed by the witnesses

This is a simple aspect of Will making and would more likely be decided as a matter of fact as it is easy to see whether a Will has been witnessed for example.

#2 Undue influence or coercion

When making a Will the person needs to make their own decisions free of any pressure or coercion.

Where someone is in a position of power over an individual and then forces them to write a Will that goes contrary to their wishes then this is undue influence.

The types of influence can vary from physical force or threats of violence to bullying or giving inaccurate information.

In fact, any method used to change someone’s mind could be classed as undue influence.

Naturally, this can be difficult to prove and can often consist of opinion rather than observable fact.

 

#3 Lack of testamentary capacity

Legally, when making a Will the person needs to be of “sound mind, memory and understanding.”

This means that they must be capable of fully understanding what they are doing.

This can include;

  • Understanding fully what they are doing and what the effects will be
  • Being able to comprehend what the effect of excluding certain people will have
  • Being clear about the values of things that they are distributing
  • Understanding the possible future effects of their actions

Again this can often hinge on a matter of opinion, albeit often a qualified, medical opinion.

#4 Lack of knowledge and approval

Knowledge and approval are assumed to be implicit in the fact that a Will is signed and witnessed however there are points where this may not be the case.

As an example, imagine someone signed a Will but the provisions were obscured by someone else. There could be two grounds for contesting the Will in undue influence & coercion and lack of knowledge.

Admittedly, this is a fairly extreme example but there are other more likely possibilities;

The person writing the Will was paralysed and could not speak or write

The person was deaf and or dumb

The person was blind

The person was illiterate

The Will was signed by someone other than the person making the Will

#5 Forgery or fraud.

This could hinge on the signing of the document.

If the signature on the Will is found to be a forgery then the document is invalid.

However, fraud could also be perpetrated by getting one document signed and then somehow patching this signature onto an entirely different Will.

Adding clauses or new beneficiaries into an existing Will or making changes to already existing aspects are examples of fraud and highlight exactly why there are clear rules around making changes to a Will.

#6 Reasonable financial provision

Under the Inheritance (Provision for Family and Dependants) Act 1975 it is possible to seek reasonable financial provision if you depend upon the deceased.

If no provision has been made in the Will or if it is clearly inadequate then a dependent could use this act as a method to contend the Testament.

The 1975 act sets out the types of people who are entitled to claim under this and these are; Spouses, Civil Partners, Cohabitants of more than two years, Children and any person who can show that they were being financially supported by the deceased.

Who is allowed to challenge a Will?

If you want to challenge a Will then you must have the legal right to do so.

The inheritance Act of 1975 gives a list of people who have this right.

They are;

  • A Spouse or civil partner whether or not they are still cohabiting
  • Direct family members such as natural children or grandchildren
  • A person relying financially upon the deceased
  • A creditor who is owed a debt by the deceased.
  • A beneficiary from a previous Will
  • Someone who can show they were promised something by the deceased

The people listed above are legally allowed to challenge the Will or the distribution of the assets included in the document but anyone can challenge a Will if they have reason to believe it is not legally valid for one of the reasons shown in the sections above.

How long does contesting a Will take?

It is important to remember that there are some practical considerations when contesting a Will.

Legally, there is no time limit to contesting the Will on grounds of fraud etc. but practically the original beneficiaries may already have spent their gains.

In practice, it is important to contest a Will as soon as possible and preferably before an executor has been granted probate (usually about 6 weeks or so).

Once distribution begins it becomes more difficult to contest.

Once the process has begun it can take a considerable amount of time to reach a resolution.

Mediation is the best bet and is very often the cheapest option and as such, the best for all concerned. It will also be the quickest method of settling any dispute.

If the case goes to court then in the most clear-cut cases it can still take many months to complete. In more difficult cases it will often take many years.

How do you go about contesting a Will?

If you are considering contesting a Will then you need to ask yourself a few questions and try to answer them dispassionately;

  1. Have you got the legal right to contest the Will?
  2. What are your reasons for contesting and are they legally valid?
  3. Do you have sufficient evidence to support your claim?
  4. Is there a practical likelihood of a successful outcome?
  5. Are you prepared for the financial and emotional cost?

If you are happy with your answers to the above then you will need to contact a solicitor to speak about your case but you should be under no illusion – this can be a time consuming and very expensive process.

There are different types of firms that may look at handling your case from no-win-no-fee specialists to more general legal firms.

You should make contact with your chosen firm as soon as possible to allow them the best chance to advance your claim.

In summary, it is possible to contest a Will and if you have legal grounds to contest the Will then it is possible to get a successful outcome but it will be a long and costly process and so it shouldn’t be entered into lightly.

If you haven’t already, write your online Will on the Smart Will App today.

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