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8 February 2013 | Comment | Article by Roman Kubiak TEP

How to contest a will and how to protect your will from being contested

We take a look at a recent case which has been reported in the press in which a son sought to contest a will of his father and how you can seek to safeguard your own will from being contested.

A recent article in The Telegraph (30 January 2013) concerns a son who is contesting a will, or more specifically, a codicil (an amendment made to a will after the will has been executed) attached to his late father’s will.

The deceased had divorced some years ago and seven years later formed a relationship with a new partner. The codicil in question gifts a £65,000 Ferrari, £12,000-a-year allowance and a life interest in the deceased’s £500,000 home to the deceased’s partner. The deceased’s son is contesting these gifts.

He says that his father was delirious due to a urinary infection at the time he made the codicil. Apparently, his father didn’t regard his partner in amorous ways anymore; and was allegedly seeking out younger models prior to his death! Further, the barrister for the son alleges that the deceased did not read the codicil before signing it.

Unlike many other foreign jurisdictions, in Wales and England we can leave our estates to whoever we like (even pets!) provided that such a will meets the requirements of section 9 of the Wills Act 1837 and is deemed to be valid.

How to contest a will

The grounds on which someone can contest a will can be found on the Hugh James website here but are, in short, as follows:

  • Lack of testamentary capacity,
  • lack of valid execution,
  • lack of knowledge and approval,
  • undue influence,
  • fraud or forgery,
  • rectification or construction of a will (Not technically a way to contest a will but, rather, a way of clarifying any question over the meaning of words in the will), and
  • claim under the Inheritance (Provision for Family and Dependants) Act 1975 (again, technically not a challenge to the will but a challenge to the provision left for a person under a will or intestacy).

Contested will claims on the rise

With an increasingly ageing and wealthy population more vulnerable adults are sadly falling foul to potentially unscrupulous activities when it comes to the disposal of their assets on their deaths. As such, will disputes are on the rise, as demonstrated in these cases:

  • Families fight to the death over wills – The Telegraph 04 | 02 | 13
  • Family inheritance disputes jump 19% as estates fall in value in recession- 16 | 07 | 12

In the present case, it appears that the son is contesting the codicil on two grounds:

  • Lack of testamentary capacity, and
  • lack of knowledge and approval.

It is anticipated that judgement will shortly be handed down in this case.

Protecting your will from being contested

Whilst this may deter many people from making a will in the first place, our advice is that it is always best to have a professionally drawn up will in place. In order to protect your will against potential claims, it is important to remember the following:

  • If there may be questions over your capacity or if you are elderly, it may be helpful for your GP or doctor to provide written evidence as to your capacity to prevent any issues arising later. Most solicitors are happy to instruct a GP to do this at the testator’s request.
  • Word your will carefully; make sure it is clear and unambiguous and make sure that, if necessary, it revokes any earlier wills.
  • If you are excluding certain family members or loved ones who you imagine may later want to contest that decision, make sure you provide detailed reasons why. If you wish to leave someone out of your will, and perhaps you don’t want them to know why, you can prepare a ‘letter of wishes’. This can be used to explain the reasoning behind your decisions and can stay out of the public eye, unlike your will.
  • Make sure your will meets the requirements of section 9 of the Wills Act 1837 and that it is signed and witnessed correctly.
  • Make sure that your solicitor takes detailed notes when they prepare your will. Sadly, we come across situations where family members have questions over the validity of a loved one’s will. Usually the first port of call is to request a copy of the will making file. If that file has only scant information it may result in more questions and, sadly, costs for those families in trying to answer those questions.
  • Finally, make sure that you minimise, as much as possible, any risk that someone may say that you were unduly influenced. For instance, if you are able to, arrange your will appointment yourself and ensure that anyone benefiting under your will is not with you when you give instructions for, or sign, your will.

Of course, in some cases, it may seem quite clear that a person lacks capacity to make a will and I leave you with a witty example of when it seems only reasonable that a family member should contest a will:

“The son of Branislav Kostic, a wealthy businessman successfully challenged his father’s will, which had left his £8m fortune to the Conservative Party. In this case the judge agreed that Branislav Kostic was not of sound mind when the two contested wills were drafted in the mid-1980s. His son pointed out there was evidence his father had suffered from paranoid delusions, which led to him believe Mrs Thatcher would save the world from “satanic monsters and freaks”. As such the judge ruled his estate should be settled according to an earlier will that was written prior to his health problems, which left everything to his son”- The Telegraph

Author bio

Roman Kubiak is a partner and head of the market leading Contested Wills, Trusts and Estates team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

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