Contesting a will

Whether you’re contesting a will or defending a will claim, our expert team of solicitors can help. The main grounds to contest a will are:

• Lack of testamentary capacity (the mental capacity needed to make a valid will)
• Lack of due execution (a failure to meet the necessary formalities i.e. for the will to be in writing, signed and witnessed correctly)
• Lack of knowledge and approval of the will (i.e. not knowing the meaning or content of the will)
• Undue influence or duress (pressure put on a person to make or change a will)
• Fraud or forgery (i.e. faking a signature or making unauthorised changes to a will)
• Rectification and construction (i.e. if a will is ambiguous, unclear or does not carry out a person's intentions or wishes)

Take a look below for more details on how to contest a will.

Grounds for contesting a will

Watch our short video which explains the main grounds for contesting a will.

Grounds for contesting a will: Lack of testamentary capacity

For a person to make a valid will they must be of sound mind. The legal test is set down in the 1870 case of Banks v Goodfellow, which states that, for a will to be valid, a person, 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.

For example, if the testator made gifts that they would not have made had they not been suffering from that disorder.
Although the law has developed since the case of Banks v Goodfellow, the basic principles remain the same.

Watch our video explaining lack of testamentary capacity.

In a will dispute, any of the concerns mentioned would be the starting point for challenging a will on the grounds of a lack of testamentary capacity.

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Grounds for contesting a will: Lack of valid execution

In a claim for lack of valid execution, also known as ‘lack of due execution’, a will is invalid if it fails to meet one or more of the following requirements (as set out in s.9 Wills Act 1837):

• The will must be in writing and signed by the testator or signed by someone else in their presence, who has been directed to do so by the testator.
• It must appear that the testator intended by their signature to give effect to the will.
• The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time.
• Each witness must either attest and sign the will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness.
• The legal presumption is that a will has been validly executed unless there is evidence to the contrary such as doubts over any of the above factors.

There are also strict rules about who can and cannot witness a will.

Watch our video below explaining lack of valid execution. 

Contact our experts to discuss your situation.
 

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Grounds for contesting a will: Lack of knowledge and approval

A person must have knowledge of, and approve of, the content of their will. They must know that they are signing a will, and approve of its contents.

It is possible to contest a will on the basis of a lack of knowledge and approval even if the will appears to be validly executed and the testator had mental capacity. It must be shown that the testator was not aware of the content of the will or that there were suspicious circumstances.

For instance, where there is a substantial gift in the will to a person who helped prepare it.

Watch our video explaining lack of knowledge and approval.

Contact our team of solicitors today to found out if you are eligible to make a claim to dispute a will or if you need advice defending against a claim.

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Grounds for contesting a will: Undue influence

To prove that a person was unduly influenced, coerced or under duress when making a will you must show 'actual undue influence'.

Unlike some classes of gifts made during lifetime, the law does not automatically presume that, because one person in a position of trust has received assets from another person, it is because of undue influence.

The evidence needed to prove undue influence must be of a high standard, to the extent that there is no other reasonable theory to explain the terms of the will.  However, recent case law seems to be marking a sea change with the court willing to accept arguments that people have been unduly influenced.

Our team have a proven track record in such cases of undue influence and represented the successful claimants in the reported case of Re Edwards [2007] EWHC 1119 (Ch).

Watch our video explaining undue influence.

If you believe that a person has made a will because of significant coercion by another person or you are facing such a claim, our will dispute solicitors can help. We have a proven track record in cases of this nature. 

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Grounds for contesting a will: Fraudulent wills and forged wills

You are able to contest a will if you believe it was forged or fraud has taken place.

For example, if Alan prepares a will in Barbara’s name and forges Barbara’s signature so that her estate is left to him on her death, the will would be invalid because of the forgery.

Alternatively, if Barbara intends to benefit Alan in her will but Carol lies to her by stating that Alan has stolen money, and then Barbara reacts by removing Alan from her will, the will may be invalid as a result of Carol’s fraud.

Watch our video about fraudulent and forged wills.

Our team of solicitors has expertise in dealing with fraudulent wills. Whether you are looking to make a claim or defend against one, our legal specialists are able to advise you on any type of fraudulent or forged will case you may have. 

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Grounds for contesting a will: Rectification and construction claims

A will may be rectified where it fails to carry out the testator’s intentions either because of a clerical error or because of a failure on the part of the person preparing the will to understand the testator’s instructions. When a will is negligently drafted this is often the first port of call before making a claim for professional negligence.

We can advise you on negligently drafted wills, claims for rectification of a will or claims regarding the construction of a will.

A construction claim may be brought if the words in a will are unclear or ambiguous. In this case the court is asked to determine the meaning of the words used in the will.

Whatever the issue, our team has the experience necessary to help you. 

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Client case study

Our experience in contesting wills

Hugh James successful in contesting a will for undue influence

Matthew Evans acted for the successful claimant in the leading case involving contesting a will for undue influence of Re Edwards [2007] EWHC 1119 (Ch).  The claimant, John Edwards, contested the will of his late mother, Winifred Victoria Edwards, which left the whole of her estate to her other son, Terry.  John’s claim was that Terry had deliberately poisoned his mother’s mind by making untruthful accusations against John and his wife, Carol, with the effect that their mother’s free will was “overborne” such that she changed her will to favour Terry.

The High Court found in favour of John and held that the will should be set aside for undue influence, specifically on the basis of “fraudulent calumny”, a type of undue influence which involves one person “poisoning” the mind of another in the hope of them changing their will to exclude another person.

This case remains one of the leading cases on contesting a will for undue influence, specifically, fraudulent calumny.

Hugh James settles claims regarding lack of due execution, fraud, lack of testamentary capacity, lack of knowledge and approval and undue influence

 Hugh James acted for a claimant who was contesting her late uncle’s last four wills on the basis that:

1. three of the wills had not been validly signed and witnessed in accordance with section 9 Wills Act 1837; and
2. the other will was made at a time when the deceased had been extremely vulnerable and therefore susceptible to the influence of others.

During his lifetime the deceased, an elderly gentleman, had invested in a number of questionable investments involving rare metals and wine portfolios and soon became the target of numerous scams.  He was befriended by one of the employees of one of the wine investment companies who went under a pseudonym and, over the course of a number of months, his investments steadily increased as did apparent gifts to the employee in his wills.

After detailed investigations and robust correspondence we were successful in having the gift to the employee set aside and we were also able to achieve an excellent result for our client at mediation against another beneficiary who had sought to secure a significant gift under that same will.

Hugh James successfully defends attempt to challenge will

In addition to successfully contesting wills, we pride ourselves on robustly defending will claims. In a recent claim we acted for the daughter of the deceased who had left her entire estate to our client.

Our client’s half-sister sought to contest the will on the basis that the deceased lacked testamentary capacity and knowledge and approval and entered a caveat in an attempt to block the grant of probate.

It was clear from the outset that the claim had no merit but the half-sister sought to use the caveat as leverage in the hope of achieving a pay-out.

We therefore issued a claim to “prove” the last will and the half-sister immediately agreed to withdraw her challenge. 

Hugh James achieves settlement in lost will claim

During his last years the deceased was bed-bound and totally reliant on the support of carers. His will (which was homemade) couldn’t be found after he died.

The legal dispute focused on the reasons why the will had been lost. If the will was deliberately destroyed by the deceased with the intention of revoking it, then it wouldn’t have effect, and the estate would have passed on the basis of the intestacy rules, the rules which apply where there is no valid will. On the other hand, if the will was genuinely ‘lost’, or destroyed by mistake, then it would still have taken effect.

Evidence was scarce, and it became clear that if the matter reached trial the court was going to have to decide which event was more likely, based on the individual circumstances.

We acted for a company who represented all of the intestacy beneficiaries. The opponents (the executors and beneficiaries under the lost will) argued that the will had most likely been accidentally destroyed by a third party.

We were able to negotiate a favourable settlement for the intestacy beneficiaries which avoided the costs and risk of trial.