Challenging a Will

We’ve all heard the stories about a little old lady bequeathing her entire fortune to the local cats’ home, leaving her loving and caring children aghast and penniless. While these are the tales that make the headlines they are in fact pretty rare. What’s not so rare, unfortunately, is for bereaved families to be unhappy with the details of a will and wish to contest it to make it fairer, more inclusive, or simply to better reflect the understood wishes of the deceased while they were living.

There are several grounds on which to challenge a will, some with more chance of success than others, and this is a brief look at some of them.

Soundness of Mind

A will can only be valid if it is drawn up while the person doing so is ‘of sound mind’ and fully understands the implications of what they’re doing. If it can be shown that the person was in some way mentally incapacitated while writing the will, then there are grounds to challenge its contents. The most common reason for this is dementia or other complication of old age, but in law any ‘disorder of the mind’ that can effect the way a will is drawn up is grounds for a challenge, especially if the will has unexpected or suspicious provisions within it.

The will can also be contested if the person was not fully aware of the contents and value of their estate, for instance leaving a valuable artwork to a casual acquaintance, while being unaware of the true value of the bequest.

Lack of Valid Execution

The will must have been properly drawn up under the terms of the Wills Act of 1837. In short, it must have been properly signed by the testator or a properly authorised attorney, and it must have been properly witnessed by two independent people who meet the legal criteria to witness a will.

Any will is by default considered to be valid unless it can be shown to be otherwise, but this is often the first area to explore when you wish to contest a will as it can be more cut and dried than other more subjective grounds.

Insufficient Knowledge and Approval

When a person signs their will, they need to be fully aware that it is indeed their will that they are signing, and they must have full knowledge of and agree with the contents. It is hard to prove that something untoward has gone on while the will was being drawn up, but if there are suspicious circumstances such as an unusually large gift being awarded to someone with little reason to expect one, then this can be an avenue to pursue in having the will overturned.

Exertion of Undue Influence

If it can be proven that the will was drawn up under duress, coercion, or with undue influence being exerted, there are grounds to dispute the will. This is, however, one of the more difficult paths towards successfully challenging a will, as the standard of evidence required to prove duress or coercion in these situations is very high, and there must be no other reasonable explanation for the will’s contents.

Fraudulent or Forged Wills

A will can be deemed fraudulent and so overturned for many reasons. The most obvious – and probably unlikely – reason is that the will was drawn up without the knowledge of the deceased, and the signature was forged. This would of course render the will invalid if proven.

A more subtle cause of a fraudulent will is when the deceased was fed incorrect information that led to the will being changed for or against the interests of an individual. For instance, one child may state that another sibling has been agitating to have the parent put into a care home against their wishes, when this is untrue. If this lie then leads to that innocent sibling being removed from the will in favour of the other, then there are grounds to contest it.

Improperly Drawn Up Wills

If a will is poorly worded and is open to misinterpretation, or has clerical errors in it, then that can also be grounds for challenging it. The court will then be asked to adjudicate on what the correct, binding interpretation should be, and the executor must act accordingly. A challenge is also possible under this rule if you can show that the person drawing up the will failed to understand the real intentions of the deceased, possibly through language difficulties or simple negligence, and the court can be asked to order that the will be redrafted or ‘rectified’ to reflect the true goals of the will.

A bereavement is always a difficult time, but the shock of an unexpected and maybe inappropriate will reading can only compound the distress. Luckily, there are many solicitors with extensive experience in contesting dubious wills, and who can advise on the possibility of successfully overturning them before embarking on legal action.