The 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.
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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.