Duncan McNair Solicitor | Spencer West

Duncan McNair Solicitor | Spencer West

All hours: 07852 416696

Telephone: 020 7925 8080

(please mention Duncan McNair when calling)

  • Home
  • About
    • Why Choose Me?
    • Charity & Social Responsibility
  • Business
    • Banking & Financial Disputes
    • Competition Law
    • Contractual Disputes
    • Debts
    • Resolving Business Disputes
    • Shareholder Disputes
  • Individuals
    • Contested Probate & Disputed Wills
      • Grounds for Challenging a Will
      • Successful Will Defence
    • Medical & Professional Negligence
    • Professional Negligence
    • Property Disputes Abroad
    • Wills & The Effect of Marriage
  • Reviews
  • Blog
  • Make An Enquiry
  • Contact

Grounds for Challenging a Will

Grounds for Challenging a WillThe basis upon which someone may challenge a Will generally falls into one of two categories – either the Will is invalid, or dependants of the deceased have not been properly provided for.

The Will is invalid

In England and Wales, a Will is only valid if –

  • The testator (meaning the person who wrote the Will) was at least 18 years old
  • It is in writing
  • The testator was not influenced, coerced or put under duress during the writing of the Will
  • The testator had ‘testamentary capacity’, meaning he/she understood the terms of the Will and the implications of signing it
  • The testator signed the Will in front of two independent witnesses
  • The witnesses signed the Will in front of the testator
  • It was not fraudulently made or forged

If a Will does not meet the above criteria, it will not be considered legally valid.

Often this happens because the person making the Will made a mistake. This is particularly common amongst ‘DIY Wills’. Less frequently, errors are found in professionally drafted Wills, something which can amount to professional negligence. Regardless of where the fault lies, the facts remains that even a small oversight can have serious ramifications, as it may result in the Will being found invalid after the person’s death – in which case, it cannot be used.

On other occasions there are more sinister factors at play. For instance, the testator may have been put under pressure to include certain terms in the Will, which is known as being put under duress. This is not permitted and, if it can be proven, the Will must be overturned. The same applies if the testator was not of ‘sound mind’ when writing the Will, perhaps due to illness, medication or disability.

Proving that a mistake has been made is relatively easy. For instance, the testator either signed the Will or did not. On the other hand, proving undue influence, a forged signature, or that the testator was not of sound mind is a little harder. These are much more contentious issues, but nevertheless, it is possible to contest a Will on these grounds – you simply need to provide the evidence to prove your case.

Whatever the circumstances, if a Will is overturned on the basis that it is invalid, then the testator’s last valid Will must be used instead. If there are no prior Wills, then the deceased will have died ‘intestate’, which is the legal term used to describe someone who has died without a valid Will in place. In such situations a set of laws called the ‘rules of intestacy’ will decide who inherits what.

Dependants have not been provided for.

Along with the Will being invalid, a Will may also be contested on the basis that dependants of the deceased have not been provided for.
This is a complex matter, as law in England and Wales allows for ‘testamentary freedom’, meaning the person writing the Will is allowed to leave their estate to whomever they wish.

However, if the testator fails to make ‘reasonable financial provision’ for their dependants, then their Will may be challenged under the Inheritance Act of 1975. Those pursuing the case will argue that the deceased owed them a financial obligation, and this obligation was not met in the terms of the Will.

Typically, financial provision claims are made by the deceased’s spouse, civil partner, cohabiting partner or child. Or it may come from someone else the deceased maintained financially or treated as a member of their family, such as an adopted step-child.

Each case will be reviewed according to its individual set of circumstances. If a judge finds in favour of the person challenging the Will, then the terms of the Will can be varied and a share of the estate can be awarded to the aggrieved beneficiary.
Expert legal advice

If you would like to challenge a Will, then you need to be sure that you have the grounds to pursue a case. Our solicitors can clarify this issue for you, explaining the various reasons why you might be able to contest a Will, and suggesting what would be most suitable in your individual circumstances.

Make An Enquiry

If you have any worries or concerns about disputing a will, or if someone is challenging your entitlement to inheritance, please call me now on 020 7925 8080 (all hours call me on 07852 416696) or click here to make an online enquiry.

Make An Enquiry

    Why Choose Me?

    • Over 30 years’ experience acting highly successfully for companies, unincorporated associations, partnerships and individuals;
    • Widely recognised as a leading solicitor in the main branches of commercial litigation in England; and
    • I will direct all of my efforts at gaining the best results for you.

    What Clients Say

    “indefatigable”

    Read More

    “We faced an almost hopeless David v Goliath undertaking. Our immense gratitude for an extraordinarily favourable outcome. Even our adversaries were pleased finally to settle amicably. We have great respect for Duncan’s professional approach and positive and kind personality”.

    Read More

    “As head of a family tree of UK and overseas companies, I have instructed Duncan McNair as my solicitor on many complex matters of very considerable importance over the past decade. These have involved commercial, corporate, insolvency and property law and disputed estates across Europe. Duncan has proved himself a wholly reliable, committed and highly Read More

    Read More

    “Duncan rebuilt and pro-actively drove the case and focused on the crucial points. I wish we had engaged him earlier. A hugely successful result for me, my company and its shareholders.”

    Read More

    “I have instructed Duncan McNair over recent years in several inter-related disputes of great importance to my future. I had heard that Duncan took on ‘difficult’ cases. Mine had complex property, commercial and corporate issues. Many individuals, some of high eminence, have been involved and many really tricky aspects have needed attention. Duncan was brilliant Read More

    Read More

    “My whole family are very keen to record our appreciation to Duncan. We realised the many problems and dangers in our case. Duncan devised a strategy and led us to a quite wonderful result – miles beyond what we ever thought possible. From start to finish he has been kind, supportive and brave against the Read More

    Read More

    “Extremely hard and successful work, well thought through strategy, a far better outcome than we had expected in a very complex situation”.

    Read More

    “Duncan worked tirelessly on our case. A highly successful outcome”.

    Read More

    “Very reasonable cost for the service being provided. I recommend Duncan without reservation to anybody dealing with financial institutions abroad”.

    Read More

    “Without Duncan’s help we would not have received the result that we did. We wouldn’t have stood a chance. A force for good to be reckoned with for which we are extremely grateful”.

    Read More

    “We praise Duncan’s hard and highly effective work in our very difficult and challenging case. Constantly attentive and assiduous and willing to help at any time of the day or late evening. The result was far better than I ever expected”.

    Read More

    “Extremely successful work in a very difficult case. You have been very reasonable about fees and the result is highly cost-effective”.

    Read More

    “You’re very very helpful”.

    Read More

    “Please may I thank you and the team for their very considerable diligence and skill in securing me a really excellent outcome from a very difficult situation concerning my property in Cyprus and the very serious problems with my bank and other parties there. Without your constant drive and attention I doubt I would ever Read More

    Read More

    “We are very very grateful for what you have done for us.”

    Read More

    “You’ve held my hand perfectly throughout. You are our best port of call for all advice.”

    Read More
    << Prev
    Next >>

    As Featured In

    Duncan named “Recommended Lawyer” in Legal 500 2019 just published as evidence of his professional skill and successful results. Also named in Legal 500 as “The clients’ champion” and “indefatigable” in helping his clients.

    Click to read more »

    • Home
    • About
      • Why Choose Me?
      • Charity & Social Responsibility
    • Business
      • Banking & Financial Disputes
      • Competition Law
      • Contractual Disputes
      • Debts
      • Resolving Business Disputes
      • Shareholder Disputes
    • Individuals
      • Contested Probate & Disputed Wills
        • Grounds for Challenging a Will
        • Successful Will Defence
      • Medical & Professional Negligence
      • Professional Negligence
      • Property Disputes Abroad
      • Wills & The Effect of Marriage
    • Reviews
    • Blog
    • Make An Enquiry
    • Contact

    Duncan McNair is a solicitor with Spencer West LLP which is authorised and regulated by Solicitors Regulation Authority (SRA Number 555456).

    · Copyright © 2022 ·

    Wordpress Experts Spicyapple