The death of loved one is a difficult time and matters can often be made worse if there is a dispute over the contents of the will that was left.
There are multiple grounds by which a will can be contested on, but in order for your case to fall in your favour, it is vital that you know which clauses apply to your circumstances and how you may begin contesting.
Contesting a Will
Cases involving the contesting of a will can be complex, and if you believe you have reasons to contest a will, it is vital that you seek legal representation immediately. You may have grounds to contest a will if any of the following apply:
The Will Was Not Properly Executed
You may contest a will if you have evidence that proves that the will left behind by a loved one was not executed in line with legal procedure and standards in place. The 1937 Wills Act states that a will must meet the following criteria in order to be valid:
- The will must be signed by the testator (person who wrote the will) or someone appointed on their behalf, in front of the two appointed witnesses.
- The two witnesses must sign the will in the presence of the testator, but not necessarily in front of each other.
- There must be no doubt that the testator’s signature intended to give effect to the will.
The Deceased Lacked Testamentary Capacity
In order for a will to be legally valid, the testator must have been of sound mind when drawing up the contents of their will.
The testator must:
Understand the nature of the document that they are creating and the implications that follow the decisions made in the will, including any implications that come as a result of including or excluding certain people from their will.
Be able to fully comprehend the value of their estate.
In addition to the above point, the testator must also not have been suffering from any disease of the mind that may have affected their decision making abilities.
The Deceased Lacked Knowledge and Approval
Another ground that beneficiaries may consider contesting a will by is lack of knowledge and approval. Under this claim, an individual must be able to prove that the deceased lacked knowledge of the contents of their will, or did not approve of some or all of the points within it.
If, for any reason, you believe that the above point applies to your situation, you must seek legal help straight away. In order to be successful in your claim under lack of knowledge and approval, you must be able to prove that:
The testator was not aware of the contents in their will, and/or there were suspicious circumstances surrounding the will, i.e the contents of the will changed dramatically just before the deceased passed away, or a substantial gift was given to the person that helped draw up the contents of the will.
Undue Influence
An individual must not be be unduly influenced, coerced, or placed under duress when drawing up the contents of their will. You must have a high standard of evidence to make a claim for undue influence, as gifts do not constitute influence on their own.
Your appointed legal advisor will be able to inform you of how likely your case is to fall in your favour, and help you strategise the best course of action if you wish to proceed.
Fraud and Fraudulent Wills
Forgery and fraud are criminal offences, and if you have reason to believe that such activities surround the will left by a loved one, you may have a case to contest.
If contesting a will on these grounds, you will need to understand which category your case falls into:
Example
Someone that draws up a will and signs it (forging the signature of the person whose will it is claimed to be) is committing forgery.
Alternatively
If a testator intends to include person 1 in their will, but person 2 lies to the the testator about person 1, causing them to remove person 1 from the will, the will may become invalid as a result of person 2’s fraud.
Contesting a Will: How Long Do I Have to Make a Claim?
If a will has been left, you have 12 years from the date of death to make a claim against the deceased’s estate. Of course, not everyone dies with a will in place, and this is called dying intestate. Where an individual dies without having created a will, you will have 12 years from the date that the Letters of Administration are granted in order to make any claim against the estate.
Contesting a Will: How do I Fund my Claim?
The cost of making a legal claim can be off-putting for many people, however, money should never stand in the way of making a valid claim and seeking justice. Although legal aid is no longer available for contest a will claims, you may be able to negate the cost in other ways. Check to see if you have Legal Expenses Insurance on any home buildings/contents insurance policy, as you may be covered to make such a claim. In addition to this, you may be able to make a claim by way of a “no win no fee agreement”, depending on the merits of your case.
Contesting a Will: Who can Contest?
To make a claim against a will, you must be a beneficiary of the will, and be receiving less than you would have in any directly previous will put in place.
If the deceased did not draw up a will before they passed away, then to make a claim, you must a blood relative. In cases such as this, the rules of intestacy will apply. The hierarchy under the rules of intestacy will decide your entitlement.
Before contesting a will, you will need to find out what grounds you can claim by, understand all associated costs of making your claim and contesting a will, have a method of payment in place to pay the fees incurred, and understand any implications of making your claim. In the initial stages, your appointed solicitor will investigate the merits of your claim, discovering the strengths and weaknesses of the claims made by all parties involved to move your case forward in the most appropriate and beneficial way.
If you need professional advice on drawing up your own will, or have been named as an executor and require help probating a will, we can help. With over 25 years of experience, you can trust in us to provide jargon-free advice when you need it most. Contact our team by phone, or by using our contact form today.
