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What are the Grounds for Contesting a Will?

On what grounds can a will be contested? This is a question that can arise when a loved one dies and problems become apparent in the administration of their estate, whether due to issues with the will or disputes between beneficiaries and executors.

Because wills are designed to be legally binding testaments of the deceased individual’s final wishes, they can only be contested under specific circumstances - and those seeking to launch a legal challenge will need to have strong evidence to support their case.

Read on for more information about the various legal grounds for challenging a will, courtesy of the expert dispute resolution solicitors at Clough & Willis. To speak to a member of our team about contesting a will, visit our contentious probate service page, or give us a call on 0800 083 0815.

Lack of Testamentary Capacity

To make a valid will, an individual must have sufficient mental capacity to do so. In order to qualify for this status, they must show that they understand the following: 

  • That they are making a will - ie, that they comprehend the nature of the act of making a will and its effect, namely that they are formally laying out who their property should pass to following their death
  • The extent of the property and the assets that will be dealt with by the will
  • The individuals for whom they are morally bound to provide for, and the consequences of not providing for these persons 

If a will appears to be rational, there is a presumption that the person making the will possessed the mental capacity to do so, but this presumption can be overturned by solid evidence that the individual did not understand the significance of their actions, such as a diagnosis of a debilitating mental disorder.

Lack of Valid Execution

A document will only take effect as a will, and become valid for guiding the disposal of assets after death, if it complies with certain requirements set out in Section 9 of the Wills Act 1837: 

  • It must be in a written format and signed by the testator (the person making the will), or another individual acting on their behalf and in their presence.
  • The testator must have intended it to operate it as a will, and for their signature to give effect to the will.
  • The signature must be made or acknowledged by the testator in the presence of two or more witnesses, present at the same time.
  • Each witness must either sign the will as a witness, or acknowledge their signature in the presence of the testator. 

If any of the above basic requirements are missing, the document will not be valid.

Lack of Knowledge and Approval

A testator must know and approve the contents of his will at the point that they execute it. When this knowledge and approval is missing, it may be due to a mistake on the part of the testator or the document’s draftsman. 

There are also cases where this lack of knowledge and approval is linked with concerns about the testator's mental capacity, or to allegations of undue influence or fraud.

Fraud or Forgery

A will is declared invalid if it is found to be a forgery; it will also be rejected if a testator has been duped into signing it, or if the will was signed under the belief that its contents were different from what they actually were. 

Fraud is a serious allegation, and therefore requires a high level of proof on the part of those making the challenge.

Rectification or Construction of a Will

This is not strictly a challenge to the validity of the will itself, but instead contests the way in which an executor is intending to distribute an estate. 

If an executor believes that the wording of a will means one thing and a beneficiary believes it means another, it may be necessary for the courts to make a final decision on the matter.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975

This type of claim challenges the provision left to a particular individual under the will when the claimant believes the amount does not represent a reasonable financial provision. 

Through this process, an individual can ask the court to award a more reasonable financial provision from the deceased's estate; similar claims can be made if the deceased has died intestate, meaning they do not have a will. 

Because this is not a challenge to the validity of the will itself, these applications are normally issued only after it has been accepted that the will is valid.

Undue Influence

A will is considered invalid on the grounds of undue influence when it is determined that the testator's own judgment and wishes have been overridden by the influence or manipulative behaviour of another person, to the degree that it can be argued that the testator was essentially coerced into making the will. 

These cases usually arise when there is reason to believe that a testator has made a decision they would not have made without the influence of another - usually the main beneficiary under the will. 

As with cases of fraud, this is a serious allegation and a difficult matter to prove. Such arguments are usually made in conjunction with a claim that the deceased lacked testamentary capacity.

Further information

If you’d like to speak to one of our solicitors at Clough & Willis, call on 0800 083 0815, or complete our online enquiry form to request a call back. You can also visit our dedicated contentious probate service page for more information on how we can help you.

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