When can a will be contested?
Posted on 15th December 2018
When you write your Will, you should have a clear idea of what you want to achieve.
However, if your will isn’t properly written or someone feels that they have been unfairly excluded, your Will could be contested after your death.
There are also a number of other grounds on which your Will can be challenged. All or part of your Will could be invalid if the challenge is successful.
If all of your Will is invalid, and you don’t have a previously valid Will, then your estate would be handled according to the laws of intestacy.
Here is an overview of circumstances in which your Will could be contested.
Improper execution - there are strict legal requirements for a Will to be properly executed; it must be in writing and signed by you in the presence of two independent witnesses. Your witnesses cannot be beneficiaries or be married to a beneficiary. If these conditions aren’t met, your Will is invalid.
Lack of testamentary capacity – your Will can be challenged if there is medical evidence that you didn’t have ‘testamentary capacity’ when your will was executed.
You must know the members of the immediate family and anyone else that you would like to inherit under your Will. You must also be able to resist pressure from anyone who might try to influence your decisions.
If it can be argued that you didn’t understand what making a Will means or that you didn’t know what you possessed when you made your Will, it could be challenged.
Undue influence – if, for example, members of your family expect to inherit something in your Will, there could be concern that they have influenced or persuaded you to write a new Will favouring them.
To challenge a Will on this basis, a chronology of events before your death, including when you changed your Will and why, would be required.
Someone alleging you were unduly influenced would need to show that there was actual coercion or that you didn’t have full knowledge and approval of the contents of your new Will.
Fraud – if your intentions aren’t properly reflected in your Will, then it could be challenged on the grounds of fraud.
This could be because the person who prepared your Will didn’t include all your wishes or made changes before your will was executed. Fraud might also arise if someone has misled you to make you change your Will or if someone impersonated you.
Financial provision - some or your relatives and dependants could make a claim for reasonable financial provision if you haven’t included them in your Will. This could include your husband, wife or civil partner, a former spouse or partner, children and others who have depended on you financially. Normally anyone hoping to make a claim of this would need to take action within six months of your death.
The outcome of claims for financial provision that are heard in court are uncertain, so mediation is popular and often successful in cases like these.
Rectification - if there was a clerical error or the person preparing your will didn’t understand your intentions then a court could be asked to rectify your Will so that properly reflects your wishes.
To avoid pitfalls such as these, it’s important to take the advice of a professional. Please get in touch if you would like to discuss making your Will.
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