When can I contest a Will?

Trainee contentious probate solicitor, Cavelle Leigh, takes a look at some of the reasons for contesting a will.

Losing a loved one is a difficult time. Unfortunately, what might make this worse, is then finding that their Will does not provide for you or your family as you may have expected.

English law protects the freedom of the testator, the person making the Will, to do as they please.

Nonetheless, there may be grounds to contest the Will on the basis that it is invalid.

What is testamentary capacity?

With an increasingly aging population, a common ground for contesting a Will is that the testator lacks what is known as testamentary capacity.

When a person makes and signs a Will, they must understand the nature of what they are doing, the extent and value of their estate and the consequences of choosing to include or exclude potential beneficiaries – in short, they must be of sound mind.

Where a person has Alzheimer’s disease or dementia, it may be argued that they lacked testamentary capacity rendering the Will invalid. However, the courts recognise that those suffering from such illnesses can have intervals of lucidity and during such time can in fact demonstrate the required testamentary capacity.

Another prevalent ground for contesting a Will particularly in the fallout of Covid-19 is that the Will has not been duly executed. The Wills Act 1837 sets out strict requirements for due execution including that the Will must be signed by the testator in the presence of two independent witnesses who must both be present at the same time. The challenges presented by the pandemic such as lockdowns, social distancing and imposed support bubbles have made this difficult.

When a person tries to create a Will themselves, or at the very least execute it at home, without the benefit of a solicitor, they may fail to comply with these legal requirements rendering the Will invalid.

Lack of knowledge and approval and fraudulent calumny

Home-made Wills bring us to a further three grounds for challenging a Will. Whilst they are permitted in English law, home-made or ‘holographic’ Wills can be an early indication that something untoward has happened. The testator may have been coerced or pressurised into making a Will that doesn’t reflect their wishes. This is known as undue influence. If someone else has drafted a Will on their behalf, a testator may sign a Will without full awareness of its contents. This is known as lack of knowledge and approval. A person might also cast aspersions on the character of another to the testator with the intention of having them removed from the Will. This is known a fraudulent calumny.

Forged Wills

One may also contest a Will on the basis of forgery. This occurs when either whole or part of the Will has been forged including most crucially the signature of the testator. This amounts to a criminal offence and so must be proved beyond reasonable doubt.

Finally, whilst some are loathe to admit it, solicitors themselves are fallible. If a Will has been poorly drafted so that it doesn’t accurately reflect the intentions of the testator or contains a clerical error rendering it invalid, the courts have the power to rectify this under the Administration of Justice Act 1982. An application must be made within six months of the date of the Grant of Probate, though this time limit may be extended by the court in limited circumstances.

In any event, if you think any of the above grounds are applicable, we recommend you seek professional advice at the earliest opportunity, ideally before the Grant of Probate is applied for.

We’ve covered here several ways in which a person can contest the validity of a Will. Please note however that even if a Will is valid there are potential options available to a person who feels they have been unjustly excluded as a beneficiary. In either case, if you would like to talk to a specialist about disputing a will, Holmes & Hills can help.