Last Updated on 25.7.16 by Michael Smoult
When can you challenge a will? That was the question put before the Courts in a recent case brought by Mr Randall against his former mother in law’s estate.
Mr & Mrs Randall had divorced some years earlier and as part of their divorce settlement, Mrs Randall agreed that if she inherited more than £100,000 from her mother, anything over £100,000 would be split equally between her and her former husband. When her mother died in 2013, her Will left exactly £100,000 to Mrs Randell and the balance, amounting to approximately £150,000, to her grandchildren. Mr Randell, who was left nothing from the estate, brought legal proceedings against his former mother in law’s estate on the basis that her Will had been forged in order to get round the divorce agreement.
The Court of Appeal decided that if a Will had been forged in attempt to defeat a divorce agreement, the party who had been affected by the forgery should be able to challenge the Will. On that basis therefore Mr Randell was allowed to challenge the Will.
Ways to Challenge a Will
There are a number of ways to challenge a will in England and Wales. The first is to bring a claim under the Inheritance (Provision for Family & Dependants) Act 1975. In general terms, a testator may dispose of his assets under his Will in any way they he may choose. However, the law provides that certain classes of person may make a claim against the estate if they feel that reasonable financial provision has not been made for them under the Will. The persons who can bring a claim must fall within a particular category. The most common categories of person who can bring a claim against the estate are children, co-habiting couples and spouses.
Other ways to challenge a will are as follows:
- The testator does not have testamentary capacity.
To make a valid will, the testator must have testamentary capacity. This means that the testator must:
- Understand that they are making a will and the effect of that will
- Know the nature and value of their estate
- Understand the consequences of including and excluding certain people under their will and
- Not be suffering from any ‘disorder of mind’ which may influence their views.
These basic principles are the starting point for challenging a will on the grounds of a lack of testamentary capacity.
2. The testator does not have ‘knowledge and approval’.
In addition to testamentary capacity, the testator must also know that what they are signing is a will and they must approve its contents. A will could be challenged on this basis if evidence can be brought showing that the testator was not aware of the content of the will.
3. The will was not correctly executed
For a will to be valid, it must be signed by the testator in the presence of two independent witnesses. It is important that the witnesses are over the age of 18, of sound mind and ‘independent’. There are strict rules about who can and cannot witness a will, and if it is done incorrectly it can make a will, or a part of a will, invalid.
4. The testator was unduly influenced, coerced or under duress when making the will.
It is important to note that just because a person may be able to bring a claim, it does not mean that they will necessarily have grounds to bring a claim and the burden will be upon them to prove any claim. Any claim will be assessed on the individual facts of each case.
Will and Estate Dispute Solicitors
Here at Gorvins our Will Estate and Disputes team have great experience in dealing with contentious probate matters. If you wish to discuss in further detail the grounds for contesting a will, then one of our experienced solicitors will be able to assist you. Please call 0161 930 5151 or send your query to email@example.com and we will get straight back in touch with you.
Partner & Head of Wills, Trusts & Probate, Wills, Trusts & Probate