Contesting a Will... Do you have a good case?

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23 October, 2020

Will disputes are becoming increasingly common due to changes in social norms, family structures, increase in elderly population, a rise in dementia and Alzheimer's sufferers and the increasing value of estates. Kirsty McNulty is an Associate at Forbes Solicitors specialising in Contentious Trusts and Probate, giving an overview of the various ways to contest a will or make claims against an Estate.

Grounds for contesting a will

You have been left out of a will or if included, you do not think you have been left enough

If you have been left out of family member or friend's Will, or if you do not think you have been left enough under a Will, then you may be able to make a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

There are various classes of people that can make a claim including children, people treated as children (including step children), spouses and former spouses, and any person maintained wholly or partly by the Deceased before death (this could include wider family members, friends or partners).

There are a number of criteria which any potential claimant will need to satisfy, one of the most importance ones of which is being able to demonstrate a "financial need".

If you have concerns about the validity of a Will

In some circumstances a Will may not be valid. There are a number of ways to contest a Will and challenge its validity:

  • Lack of mental capacity. With an ageing population, the rise in cases of dementia and a greater awareness of other mental health issues, there is a definite rise in challenges to wills on the basis the testator lacked mental capacity. If the person did not have the requisite mental capacity, the will is not valid.
  • Lack of knowledge and approval of the terms of a Will. This is often linked to lack of mental capacity but can also be argued in other cases such as where English is not the first language for example. If a person did not know and approve the terms of the will, the will is not valid.
  • Undue influence. It is often the case that a testator makes a Will at a time when they are particularly vulnerable, whether that is because of age or ill health, and this is open to abuse. Find out more about undue influence here. If a person is forced into making a Will, then the Will is invalid.
  • Fraud and forgery. We can often get handwriting experts to provide evidence on this. If a Will is forged or the signature is forged, then it is not valid.
  • Will not properly executed. There are certain formalities set out by the Wills Act 1837 which must be satisfied in order for a Will to be valid. This includes a Will being in writing, signed and witnessed. If a will is not properly executed, it is invalid.

To find out more about invalid Wills click here or for more information on grounds for contesting a Will click here.

If you have been promised an inheritance but find out you have not been included in the Will

In certain circumstances, a promise can be enforceable. If you were promised an inheritance and have not received it, and have relied on that promise to your detriment, then you may be able to make a claim. This is often dealt with under constructive trust or the doctrine of proprietory estoppel.

There are a number of ways to challenge a Will or make a claim against an Estate. We are flexible with fees and often pursue matters on a "no win, no fee basis" or defer fees to the end of the matter.

For more information contact Kirsty McNulty in our Contesting a Will department via email or phone on 01772 220 022. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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