Posted on 5.10.16 by Tasoula Addison
Will disputes are commonly seen in films and television, presenting the challengers of a will as outraged or heartbroken sons or daughters, lovers or partners, husbands or wives. Often, the process of challenging a will is made to look very simple; someone dramatically disagrees with a will during the reading by the executor and the next scene shows them in court, or arguing across a table with a solicitor, hashing out the assets they believe they are entitled to. In England and Wales, there are certain criteria and specific grounds for anyone wanting to contest a will, it is not as simple as believing you should have been given more.
Ways to Challenge a Will
There are numerous 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 he chooses. 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.
Not all will disputes are successful, 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 we will get straight back in touch with you.