When a loved one dies, they will often have left a will. In some circumstances, it may transpire that there could be some concerns surrounding the will and so you may need to consider whether you have any legal standing to challenge it.
In England and Wales, there are several grounds for challenging a will. It is a complex dispute to navigate meaning legal advice at the earliest opportunity is essential.
The following are the potential grounds for challenge that would be considered:
Testamentary capacity
In order to execute a valid will, the testator must, at the time of providing instruction to their drafting solicitor and at the time of execution, have the requisite testamentary capacity.
This will often be evidenced by medical records demonstrating cognitive decline and likely reference to memory issues as well as witness statements from friends and family supporting their mental decline.
Lack of understanding and approval
When providing instruction for, and executing, the will, the testator must have due knowledge and understanding of its contents. This is often evidenced within attendance notes of the will file wherein the drafting solicitor was discussing the terms of the will with them. As good practice, a good attendance note would include conversations in relation to the terms of the will, the impact these terms will have on the estates assets and the people named and beneficiaries and discussion on any major changes or persons being excluded. The absence of these conversations from said notes could provide grounds for challenging the will.
Additional care must be taken to ensure the testator had the requisite knowledge and approval of their will, if they have any special requirements or needs. These can include things such as impaired hearing, visual impairment, speech impediments, low levels of literacy, health conditions or lacking legal knowledge when executing a complex or unusual will.
Undue influence
A party may look to challenge the validity of a will as they believe that the testator’s decision-making process has been influenced by a third party. A challenging party must prove that the testator acted against their own will and that they were coerced into making a will that they did not wish to make. This can include being coerced into making a will that the testator did not want to make at all, or instead influenced to include gifts/beneficiaries that they would not have done under their own volition.
It is the duty of the party challenging the will to prove that the testator was subjected to undue influence and that such influence impacted the testators’ decisions in drafting the will.
The evidential burden for undue influence is high, considering it being the equivalent to fraud. Undue influence is difficult to prove and so the challenging party would need to be able to provide quality evidence in support of their claim.
Forgery and fraud
On occasion, a party may have reason to suspect that a will has been forged. In such instances, it may be appropriate to instruct a handwriting expert to consider the testator’s signature.
Unless an expert can definitively confirm that they consider the signature, and other possible handwriting, to be forged, the court are unlikely to consider allowing the claim.
A will being challenged based on fraud is possible but less common. Such instances may include a person pretending to be the testator, and amending or executing a will in this person’s name.
Claims of forgery and fraud are less common, and parties will often seek to rely on other grounds to challenge a will.
Rectification
From time to time, a will may require rectification due to a clerical error resulting in the terms of the will failing to accurately reflect the testator’s intentions despite their instructions to the drafting solicitor being clear and recorded on file. The need for rectification may arise if the drafting solicitor fails to understand the testator’s true intentions, and therefore drafts the terms of the will incorrectly and the testator has failed to adequately proof read the document property to execution.
In the above instances, the court will rectify the will and give effect to the testator’s true intentions. Such application to the court must be made within 6 months of probate being granted. If this limitation period expires, the court is unlikely to allow any applications to remedy the issue.
If the validity of a will is successfully challenged on the grounds of lacking knowledge and approval, mental capacity, undue influenced or forgery and fraud, the estate is distributed in line with the terms of a former will. If the deceased did not execute a will during their lifetime, then the estate is distributed in line with the rules of intestacy. It is important for anyone challenging a will to consider whether a successful challenge would benefit them. If a successful challenge does not stand to improve upon a person’s current position, they likely should not pursue the claim.
A will can also be challenged on the basis of invalid execution.
There is a further option under the Inheritance (Provision for Family and Dependants) Act 1975 for persons who believe that they have not been provided with reasonable provision under the will.
If you have concerns that a will has not been executed in a valid manner, you must seek advice at the earliest opportunity.
Should you wish to speak with us about your own matter, please get in touch today on 0161 696 6178 and we will be happy to speak with you.
Comments