When can a will be contested?
Posted on 10th July 2023
According to a recent survey many of us, especially in younger age groups, don’t know when a Will can be contested.
Almost nine out of 10 people aged 45 to 59 in the UK have only a basic understanding of contesting a Will.
Just over half know the necessary grounds to contest a Will. Only around a third know the process has a time limit.
Younger people and their Wills
Only a quarter of people aged 18 to 29 have a Will and only half aged 45 to 59. They have little knowledge about Wills or the probate process. This means they could die intestate, leaving loved ones in financial difficulties or without a home.
Their estate could also be subject to more Inheritance Tax (IHT) than necessary because they haven’t put any plans in place.
Without clear instructions in a properly written Will the probate process could be long and expensive. Poorly written and improperly witnessed Wills increase the risk of a challenge.
Older people and their Wills
It’s a different picture for people over 60. They have a better understanding of the probate process and know what contesting a Will could mean. However, many don’t know the grounds to contest a Will or that there’s a time limit.
Grounds for contesting a Will
Before considering this route it’s worth asking whether it will genuinely improve things for yourself or your loved ones.
There are five main reasons why Wills are challenged or contested. The Wills Act, which dates back to the nineteenth century, says there are three requirements for a valid Will. It must be:
signed by the person making the Will or someone else in their presence and at their direction
intended to be valid.
At least two witnesses must also sign to confirm that all these points apply. If there’s any doubt whether a Will is valid, the witnesses might be contacted to confirm what happened at the time. It is assumed a properly executed Will is valid unless certain circumstances apply.
1. Someone didn’t have mental capacity
Someone must have mental capacity to understand what assets they have and the implications of making a Will. If there’s a reasonable suspicion this wasn’t the case, the executors must prove the person had capacity. To do this an expert might give an opinion, based on medical records.
2. Understanding and approval
Doubts might arise if someone had a physical impairment, couldn’t read well, was frail or vulnerable. This might suggest they couldn’t understand and approve the contents of their Will.
3. Undue influence
Someone challenging a Will must prove in court undue influence on the person making a Will. To succeed, the court will want evidence that the only reasonable explanation is that inappropriate influence was applied. Proof is needed that someone didn’t want to make or sign their Will.
4. Forgery and fraud
A forged Will is invalid. To prove this a handwriting expert might be involved to compare examples of handwriting and signatures. If their report is definite, it’s likely the claim will succeed. Alternatively, it might be proved the person who signed the Will was an imposter, for example.
Sometimes an error when drafting the Will might mean it doesn’t accurately reflect someone’s wishes. If this is proved the court can ‘rectify’ the Will to reflect their true intentions. In these circumstances a claim must be made within six months of a grant of probate.
In most other cases Wills for personal estates must be contested within 12 years of someone’s death. However, investigations need to be made quickly, before the estate is administered.
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