Contentious Probate & Inheritance Act claims

We act for beneficiaries, executors, administrators and others interested in the estate.

How To Contest A Will

The grounds upon which someone can contest a Will are as follows : 

  • Lack of testamentary capacity.
  • Lack of testamentary intention.
  • Lack of due execution.
  • Lack of knowledge and approval.
  • Undue influence.
  • Fraud or forgery.
  • Rectification or construction.
  • Claim under the Inheritance (Provision for Family and Dependants Act 1975).

Lack of Testamentary Capacity

An individual must have sufficient mental capacity to make a valid Will.  An individual will be considered to have sufficient mental capacity to make a Will if he or she understands the following :

  • That they are making a Will i.e. the nature of the act of making a Will and its effect namely that the individual was setting out to whom his property should pass following his death.
  • The extent of his property and the assets which will be dealt with by the Will.
  • The individuals for whom he is morally bound to provide and the consequences of not providing for such persons.

If a Will appears to be rational there is a presumption that the person making the Will did have mental capacity but this presumption can be overturned by  evidence to the contrary.

Lack of Valid Execution

A document will only take effect as a Will and will only be valid to dispose of assets after death if the person making the document intended to operate it as a Will.

To be valid a Will must comply with certain requirements set out in Section 9 of the Wills Act 1837.

To be valid a Will must satisfy the following :

  • It must be in writing and signed by the testator (the person making the Will) or some other person  in his presence and at his direction.
  • If it appears that the testator intended by his signature to give effect to the Will.
  • If the signature is 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 his signature in the presence of the testator.

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

Lack of Knowledge and Approval

A testator must know and approve the contents of his Will.  This normally means that he must know and approve of the contents of the Will at the time when he executes it.  The lack of knowledge and approval may be due to advertence or to a mistake on the part of the testator or to a mistake on the part of the draftsman employed by him.  Lack of knowledge and approval can arise without there being any suggestion that the testator lacked mental capacity or that he was subject to undue influence or fraud but on the other hand there are cases where the alleged lack of knowledge and approval is linked with problems about the testator's mental capacity or to allegations of undue influence or fraud.

Fraud or Forgery

A will is invalid if a testator has been duped into signing it or if he signed the Will having been lead to believe that his contents are different than they actually are.  It is also invalid if it has been forged.  Fraud is a serious allegation and requires a high level of proof.

Rectification or Construction of a Will

This is not strictly a challenge to the validity of the Will itself but can be said to be a challenge to 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 the Court can be asked to decide the question.

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

This is not a challenge to the validity of the Will itself and indeed such an Application is normally issued when it is accepted that the Will is valid.  It is instead a challenge to the provision left to a particular individual under the Will by which that individual can ask the Court to award to him or her reasonable financial provision from the deceased's estate on the basis that the Will (or intestacy if there is no Will) fails to provide that individual with reasonable financial provision unless such a challenge is made. 

Undue Influence

A Will is invalid for undue influence where a Court is satisfied that a testator's own judgment and wishes have been overborne as a result of the influence or manipulative behaviour of another person such that the testator was in effect coerced into making the Will.  This arises where there is reason to believe that a testator has done something he or she would not otherwise have done had it not been for the influence of another (usually the main beneficiary under the Will).  This is a very difficult matter to prove and very often such an argument is run in conjunction with an argument that the testator lacked testamentary capacity.

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