What happens if a Will is contested?
Posted on 30th March 2023 at 14:36
Contesting a Will in the UK is a complex process; we’ll help identify the best way to address your concerns about the execution of a Will including mediation and, where appropriate, taking the matter to court.
The first thing to do is to establish the Will has been properly signed and witnessed in order to make it valid. If you suspect that it may not be valid, you can contest it on the grounds of its validity.
When a Will is contested, the executor(s) normally takes a neutral approach, so they aren’t responsible for legal costs if there are concerns about how they have handled the estate. This may mean administering the estate is delayed significantly while the parties involved attempt to come to a friendly resolution or until the matter is resolved by an Order of the Court.
What are the grounds for contesting a Will?
There are generally two bases for contesting a Will; either the Will itself is invalid, or it fails to make ‘reasonable financial provision’ for a family member or someone who was financially maintained before their death.
There are a few grounds on which you may be able to question whether the Will is valid. In legal terms, the grounds for contesting a Will are:
1. lack of testamentary capacity
2. undue influence or coercion
3. lack of knowledge and approval
4. Wills Act 1837
5. and forgery and fraud.
The validity of a Will can be contested if you believe it was created under one or more of following conditions:
The person who has died did not have sufficient mental capacity at the time the Will was drawn up.
This is called a lack of ‘testamentary capacity’. The law says that, at the time of drawing their will up, the person must be of “sound mind, memory and understanding.” This means that the person making the Will must:
Understand what they are doing and what effects those action have.
Understand the full extent of what they are distributing.
Be able to appreciate the effects of including or excluding certain people from their Will.
Not have a ‘disorder of the mind’
If you want to know more about contesting a Will on the grounds of lack of testamentary capacity, you can read below.
Testamentary capacity
A person making a Will must be of “sound mind, memory and understanding” when making a Will. The law relating to whether a person has sufficient mental capacity to understand the content of his Will was established in the case of Banks v Goodfellow [1869-70] which stated that the testator must:
understand the nature of the act and its effects.
understand the extent of the property of which he/she is disposing.
be able to comprehend and appreciate the claims to which he/she ought to give effect.
and must not be affected by any “disorder of the mind” that shall “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties and that no insane delusion shall influence his Will in disposing of this property and bring about a disposal of it which, if the mind had been sound, would not be made”.
The factors referred to in Banks v Goodfellow are considered in more detail below.
Understand the nature of the act and its effects
The law does not call for a perfectly balanced mind. Just because a person making a Will was moved by “frivolous, mean or even bad motives” will not make a Will invalid. A person is entitled to disinherit his children for reasons of spite without such wishes being challenged on the grounds of mental capacity. This is obviously subject to the individual having “sound mind, memory and understanding” at the time the Will was made. The question as to whether a person has the relevant mental capacity is a factual question which is often determined by medical evidence. However, the evidence of close friends and family is also relevant, and a person can be found to be lacking mental capacity based upon their evidence alone.
When contesting a Will, problems arise with issues concerning mental capacity where a disease affects the mind over a period of time, e.g., Alzheimer’s. In such patients it is often the case that on some days they understand matters and on others their memory is lacking. To succeed with contesting a Will, it must be shown at the time the Will was executed, the testator did not have the capacity to make a Will.
Understand the extent of the property
A testator need only have the capacity to understand the extent of his property. It is not the case that a testator has to have a detailed knowledge of all of his assets/monies. For example, if a testator has a broad idea of his assets but is not able to give specifics, it will not be possible to successfully contest a Will on the basis of mental capacity. Cases in which the testator did not understand the extent of the property are very rare. Where this specific heading is raised, it is often in support of other matters concerning a testator’s capacity.
Comprehend and appreciate the claims to which he/she ought to give effect.
If a testator did not consider leaving part of their estate to a close family member or did not consider a claim against the estate, this may be an indication that the person lacked the necessary mental capacity to understand their actions and it may be possible to contest a Will. Such claims may include those pursuant to the Inheritance (Provision for Family and Dependents) Act 1975, details of which are included in Part 8 of this series of articles.
Contesting a Will: presumption of capacity
Mental capacity will be presumed if the testator left a Will which appears to be rational and contains no irregularities.
If, however, the testator’s medical records and their close family members suggest and it is established that the testator has a history of mental illness/confusion or memory loss, it will be for those persons seeking to rely on the document to establish capacity (see Vaughan v Vaughan [2005]). For example, if an executor named in such a Will is insistent that the Will is valid, it will be for the executor to prove that the testator had the necessary testamentary capacity.
The person who died did not have sufficient knowledge and approval
For a Will to be valid, a person must have understood and approved the contents. Knowledge and approval are normally presumed when the Will is executed correctly and the person had the necessary capacity, but there are a few circumstances where the Court may require evidence to prove knowledge and approval was given if there are any disputes:
The person making the Will was deaf and/or dumb (couldn’t speak)
The person making the Will could not speak and write or was paralysed.
The person making the Will was blind or illiterate.
The Will was signed by someone other than the person making the Will at his or her instruction.
When there is suspicion that the person making the Will did not know or approve of the Will, the people who believe the Will to be valid are the ones who have to prove it is so.
Undue influence
Someone else interfered with the creation of the Will, meaning they exerted undue influence on the distribution of assets against the individual’s desire.
If someone coerces or forces someone into changing their Will for the coercer’s benefit, this is called undue influence. It can be very hard to prove, however, as the law doesn’t presume that people in a position of power over the person who has died being named in the Will is the result of undue influence.
Someone exerting undue influence can include physical violence, purposely giving inaccurate information, or verbal bullying, but it can also include asking incessantly – what matters is that their wishes overpowered those of the person who has died.
It can be particularly difficult to demonstrate that a Will is invalid because of undue influence; exerting pressure (like “but we’re family”) or appealing to moral reasons (like “remember all the things I have done for you”) to be included is not normally considered undue influence unless it overpowered the Will of the person who has died.
The Will is a forgery or is fraudulent
If either the entire Will or the signature of the person who made the Will is forged, or the content of the Will is fraudulent, then the Will is invalid. A fraudulent Will is one that includes wishes against the person who has died; it is similar to undue influence but does not require coercion. These grounds can also include beneficiaries (someone who would or does benefit from the Will) or non-beneficiaries destroying versions of the Will for their gain.
The Will has not been executed properly, meaning the estate has not been distributed in accordance with the person’s wishes.
A valid Will complies with Section 9 of the Wills Act (1837), and must:
Be in writing and signed by the person making the Will.
The person making the Will must have signed it with the intention of creating a valid Will.
Two people must witness the Will maker’s signature. Those witnesses must either be present when the Will maker signs or, the witness must be told by the Will maker, that is his/her signature.
The witness then either signs having seen the Will maker sign, or signs in the knowledge that it is the Will maker’s signature on the document and that the Will maker did sign it with the intention of creating a valid document.
Reasonable financial provision
It may also be possible to seek reasonable financial provision if you depended financially upon the person who has died but no such provision has been made in the Will, under the Inheritance (Provision for Family and Dependants) Act 1975. The Act also sets out who is entitled to make a claim on these grounds; normally, spouses or civil partners, cohabitants of two or more years, children, and people who can show they were being supported financially by the person.
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