A guide to contesting a will
A will may be your final say but the provisions in a will can be challenged or the will contested by unhappy beneficiaries if they can prove there is something wrong or it was made under duress.
18 December 2012
A will (sometimes also referred to as the last will and testament) is really nothing more than a legal document that states how the testator (the person making the will) wanted their estate – property, possessions, money, savings etc – distributed after their death and who they wanted those assets to go to. It may also stipulate who they wanted to administer the process of distributing those assets – the legal procedure called probate.
The advantage of making a will
For most people who make a will (and sadly that’s still too low a number) the advantage lies in making sure that their loved ones are provided for and to avoid family squabbles about who gets what. If you die without making a will, the rules of intestacy dictate how your property and money will be distributed.
A will may not be the last word
Having a will therefore ought to ensure that everything is clear cut and everyone understands their inheritance and knows it reflects the wishes of the person who made that will However, if you can prove there is something wrong with the will or there were dubious circumstances surrounding its drafting, the last will and testament is not as set in stone as most people imagine it to be.
How to contest a will
There are times when relatives or interested parties may want to contest a will because they feel it does not reflect the wishes of the deceased or there are disagreements in the family about inheritance issues. It may simply be a question of money or ‘fair shares.’ Rivalries or concerns can emerge after years of resentment or simply through lack of communication.
If you are successful the will be declared invalid and the next most recent valid will stands in its place. If no such will exists, the rules of intestacy will apply instead.
Contesting a will.
You can choose to contest a will if you have reason to believe that there may be something amiss with it but you can’t contest a will just because you’re not happy with the amount of your inheritance. You must have some more concrete reason for contesting its legal validity. Fraud or forgery is the most obvious basis for contesting a will, but both these allegations are notoriously costly and difficult to prove.
Broadly speaking, the only real grounds for successfully contesting a will in England and Wales are:.
Demonstrating undue influence Ã¢ showing that there was coercion, manipulation, deception or intimidation by another party to put pressure on the person making the will to influence its content to their advantage at the time the will was made.
Proving a lack of testamentary capacity – demonstrating that the person making the will did not understand what they were doing at the time they made the will, no matter who actually drew it up.
Proving undue influence.
The courts have previously revoked wills on the grounds of undue influence, but the concept can prove difficult to establish. It is important to distinguish between someone applying undue influence on the testator (through threats or physical violence or deception) and a testator being influenced by appeals to their own sentimentality.
You may dislike the idea of relatives or others trying to ingratiate themselves by appealing to the testator’s affections, dropping hints about past services they’ve rendered that should be rewarded or seeking pity for the future destitution they face. All these actions are undoubtedly designed to emotionally influence the testator, but such behavior is perfectly legal and legitimate, no matter how distasteful you may find it.
If that pressure makes the testator do something they otherwise would not have done, what is acceptable or not legitimate is someone applying psychological or actual physical pressure directly on the testator. The key element is coercion.
Without coercion, the influence applied can not be termed ‘undue’. Coercion may be brutal and directly obvious such as confinement or the threat of physical violence (or indeed the use of actual physical violence) against the testator or against someone or something they hold dear – like a friend, another relative or a pet. Coercion may also be more subtly applied in the last days or hours of life when the testator is least able to resist that pressure. The test courts use to determine if there was undue influence is to decide whether the testator is likely to have thought: ‘this is not my wish but I must do it’.
Proving lack of testamentary capacity.
Testamentary capacity is measured very broadly and seeks to determine whether or not the person making the will understood among other things:.
The effect of the will they made.
The extent of the property they were disposing of.
The expectations of others which they reasonably ought to meet in their will.
The testator must be shown to have had testamentary capacity at the time their instructions were given to the lawyer if the will was prepared by a lawyer.
Disputing a will based on a lack of testamentary capacity requires evidence that the person making the will was not mentally capable at the time of making the will. That evidence can only be obtained through a medical or psychiatric assessment by experts based on their opinion of the testator’s state of mental health at the time the will was made. Medical records and evidence from witnesses who came into contact with the testator at the time the will was made will therefore become crucial in any action that contests a will on this basis.
Ultimately, contesting a will on the grounds of lack of testamentary capacity depends on showing that the person making the will suffered from a condition which may have skewed their affections or loyalties and their sense of ‘doing the right thing’. That could be a consequence of some long term degenerative illness or might even be due to drug or alcohol consumption at the time of making the will. If this can be shown to have resulted in a will that was probably different from the one the testator would have made had they been of ‘sound mind’, contesting a will on the basis of lack of testamentary capacity is likely to be successful.
Contesting death bed wills.
Relations who feel they’ve been denied their rightful inheritance often regard death bed wills (i.e. wills made literally days or sometimes even hours before death) as deeply suspicious documents. That’s especially true if the testator has remarried, was in a relationship with a much younger partner or has children from a previous marriage. Contesting such a will is possible on the grounds of undue influence or lack of testamentary capacity, but success is not guaranteed, even in the most ‘extreme’ examples.
Challenging a will.
A will may be perfectly valid, properly written and witnessed, made without any duress or coercion by someone in full possession of their faculties who understood all the implications of the decisions they were taking. So what happens when you wish to challenge the provisions made in a will rather than query the legality of the document itself? The law makes provision for disappointed beneficiaries to challenge a will in two scenarios where these circumstances most commonly arise:.
If you were given assurances by the testator during their lifetime about inheriting land or property only to have those promises not honored in the will. In that case, you could use a legal challenge called Proprietary Estoppel.
If you wish to argue that not enough was set aside for you in the will given your financial dependency and nature of your relationship with the deceased, you would use the Inheritance (Provision for Family and Dependants) Act 1975 – sometimes simply referred to as the Inheritance Act.
Challenging mistakes in a will.
A mistake may have been made in a will meaning it does not properly express the testator’s wishes. If this error results in you suffering a loss as a potential beneficiary you can apply to the court for the will to be amended (known as rectification) within six months of the date of the grant of probate.
If a court is satisfied that it does not express or carry out the testator’s true intentions, the Administration of Justice Act 1982 allows a will to be rectified. There are however only two possible grounds for the court to use these powers:.
Claims against an estate or trust.
You may have no issue with the will itself but instead wish to challenge the conduct or competency of an executor or personal representative or trustee appointed by it. There may be disputes about how ‘mis-management’ by the executor, personal representative or trustee in dealing with the estate assets (property, monies, investments etc) is causing you to suffer a loss. You can remove or replace trustees or executors if you can demonstrate that they are dishonest or incompetent and are failing to distribute the assets that you are entitled to or are acting negligently.
If you die without making a will, the rules of intestacy dictate how your property and money will be distributed. Disputing a will based on a lack of testamentary capacity requires evidence that the person making the will was not mentally capable at the time of making the will. Medical records and evidence from witnesses who came into contact with the testator at the time the will was made will therefore become crucial in any action that contests a will on this basis.
Ultimately, contesting a will on the grounds of lack of testamentary capacity depends on showing that the person making the will suffered from a condition which may have skewed their loyalties or affections and their sense of ‘doing the right thing’. If this can be shown to have resulted in a will that was probably different from the one the testator would have made had they been of ‘sound mind’, contesting a will on the basis of lack of testamentary capacity is likely to be successful.
For more information contesting wills in London click here