Possible grounds for contesting a will
Grounds for contesting a will include:
(1) The will is invalid; the deceased lacked testamentary capacity and/or did not understand and approve the terms of the will or was tricked or coerced into making gifts that they did not wish to make (to their neighbour or gardener, for example, ahead of their family, or to one of their children at the expense of the others).
(2) The deceased promised to leave cash or property to someone not provided for in the will, and that promise takes priority over the will.
(3) Some of the deceased’s property was jointly owned with someone else who will inherit some or all of it no matter what the will says.
(4) An application for an award of cash or property is made under the Inheritance (Provision for Family and Dependants) Act 1975.
Undue influence
The most common reason advanced by clients for contesting a will in the UK is ‘undue influence’, where the terms of the will are said to result from unreasonable pressure or some sort of deceit applied to the person making the will.
In an 1868 judgment the Sir J.P. Wilde said:
“… ‘To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like – these are all legitimate, and may be fairly pressed on a testator.
On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgement, is a species of restraint under which no valid will can be made.Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes is overborne will constitute undue influence, though no force is either used or threatened.
In a word a testator may be led but not driven and his will must be the off-spring of his own volition and not the record of someone else’s’.” (emphasis supplied)
Contesting wills on the grounds of ‘undue influence’ has its difficulties as very often there are no witnesses who saw it take place.
Successful grounds for contesting a will (with brief explanation) are:
1. Lack of knowledge and approval
(The person making their will did not properly understand the terms and effect of their will.)
2. Testamentary capacity
(The person making the will did not have capacity to do so.)
3. Rectification and construction claims
(A clerical error was made in the drafting of the will or the person drafting it failed to properly reflect the intentions of the testator.)
4. Invalid execution or witnessing of the will
5. Fraudulent wills and forged wills
6. Undue influence
(person making their will has been put under unreasonable pressure to sign the will or make changes).
Parties intending to challenge wills are strongly advised to seek legal advice before taking any action.
A will must reflect the free informed wishes of the Deceased. If someone bullied or tricked them into making a will (or changing their existing will) in terms that did not reflect their true wishes, the court may set it aside.
Ineffective: it does not reflect the deceased’s intentions
The court may be prepared to enforce, in whole or in part, prior agreements and promises made by the Deceased as to how they would leave their property.
The court will be prepared to correct an obvious mistake in some cases.
Inheritance Act: it does not provide for everyone it should
If a valid will (or the intestacy rules which apply where no will has been found) doesn’t make reasonable financial provision for you, you may be able to make an Inheritance Act claim.
Such a claim can be made by, among others, former spouses and civil partners, some partners, children (including adult children) and dependants. Time limits apply.
Member: Association of Contentious Trusts & Probate Specialists
Our recent will challenge cases include:
- Acting for claimants, executors and beneficiaries in claims under the Inheritance (Provision for Family and Dependants) Act 1975)
- Securing a settlement for a nephew of the deceased aunt who had promised her house to him but had instead left it to her partner
- On behalf of the main beneficiary, defending claims made against a will as a result of a relative refusing to testify as to the validity of a will
- Securing a declaration by consent of an earlier “shredded” will
- Securing revocation of a grant of probate through an order by consent that a later will was invalid as it had not been properly executed and that an earlier will should be admitted to probate
- Securing a financial settlement for a disappointed beneficiary through formal mediation based on concerns relating to a lack of testamentary capacity and the presence of a valid Inheritance Act claim
- Obtaining a declaration for the members of the deceased’s wife’s family following contested court proceedings that the deceased’s estate should be administered according to the trusts of a previous “mutual” will made in the same terms as those of his late wife and not according to a later will giving his estate to the deceased’s family.
Wills need to be clearly written to avoid disputes
Some key law on contested wills
“It is essential that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; and shall be able to comprehend and appreciate the claims to which he ought to give effect, and; with a view to the latter object, that no disorder of mind shall poison his affections, pervert his sense of right or pervert the exercise of his natural faculties;  that no insane delusions shall influence his mind in disposing of his property and bring about a disposal of it which if his mind had been sound, would not have been made.” Banks v Goodfellow [1870]
“If a will is duly executed and the testator has testamentary capacity……… the court will presume in the absence of other evidence that the testator knew and approved the contents of the will, unless the circumstances are such as to excite the suspicion of the court. If such circumstances exist, the burden lies on those seeking to prove the will to establish affirmatively, on the balance of probabilities, that the testator knew and approved the contents of the will” Fuller v Strum [2002].
In these circumstances, the task of the court is to assess the evidence and reach its conclusion, on the balance of probabilities.
“Where a will has been duly executed by a deceased of testamentary capacity who knew that he was making a will and is shown to have known and approved of a specific part of the will, the court must consider how real is the possibility that the deceased did not know and approve of the remainder of the will and that requires a careful examination of all the circumstances including the directions and dispositions of the will.“
“The question is whether the court is satisfied that the contents do truly represent the testator’s testamentary intentions.” Fuller v Strum [2002]
