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Grounds for contesting a Will

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Wills can vary widely, as can any potential disputes related to them. Whilst some Wills can follow a standard format, others can be highly complex, especially where there are potentially many beneficiaries, or significant assets associated with the estate that perhaps the Will's beneficiaries, or other parties, were not previously aware of.

If you are considering contesting a Will, we can offer expert legal advice on the matter.

On what grounds can you contest a Will?

There are five main areas in which Wills are most commonly contested:

Lack of testamentary capacity

This relates to whether the person making the Will had the mental capacity to do so at the time. If they did not, then the will may be invalid due to lack of testamentary capacity.

The case of Banks v Goodfellow [1870] sets out the legal test, which states that in order to make a valid Will a person must:

  • Understand the nature of making a Will and its effects;
  • Understand the extent of the property of which they are disposing;
  • Be able to comprehend and appreciate the claims to which they ought to give effect; and
  • Have no disorder of the mind that prevents their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.

Lack of valid execution

In order for a Will to be valid it must meet certain legal requirements. If this is not the case, the Will could potentially be contested under a lack of valid execution.

The required elements for the Will to be valid are set out under section 9 of the Wills Act 1837 and are:

  • That the Will is in writing (voice or video Wills are not legally valid unless there is a written copy which also meets the criteria)
  • That the Will is signed by the person making the Will, or by someone on their behalf at their direct request, with the intent of making the Will legal
  • That the signing of the Will is witnessed by two people, present at the same time and each witness signs the Will or acknowledges the person's signature.

The responsibility of making sure that the Will meets these legal requirements, and is thus valid, belongs to the Will writer or solicitor.

Lack of knowledge or approval

The person making the Will must have been aware of everything contained within the Will and understood it. If they were not, then the Will is invalid for lack of knowledge and approval.

This sometimes happens when the Will is written in English and English is not the person's first language. This differs from a lack of testamentary capacity because the person making the Will has the mental capacity to do so, but they did not know and understand its contents.

Undue Influence

If an individual or a group coerces or puts pressure on a person to write a Will or change an existing one, then the Will is invalid due to undue influence.

This is not the same thing as a family member encouraging their loved one to write a Will to make sure they are prepared. Undue influence can be grounds to contest a Will if you can prove that some assets or parts of the estate were given to a beneficiary as a direct result of the pressure or manipulation they used on the person making the Will.

To successfully contest a Will for undue influence, you will need evidence that a person was forced or coerced into making a Will.

Fraud or forgery

A Will is invalid if it is found to be forged or came about as the result of fraud.

The fraud could come about if someone misleads the person making the Will by using false information in order to make them cut out another beneficiary. Forgery is generally an issue if someone writes a version of a Will in someone else's name and forges their signature to make it appear valid.

If you believe that any of the above reasons to contest a Will could stand in your circumstances, we can help you to do so, with our experienced team of Wills and probate solicitors able to guide you through the entire process. Find out more about contesting a Will here.

If you have any questions about grounds for contesting a Will or require advice about any aspect of Wills and probate, get in touch. Call us today on 0800 689 3607.

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