Thirsk Winton LLP

When can a will be challenged?

Losing a loved one is an emotional and trying time. This can be made especially difficult if you suspect that the will may not reflect the true wishes of the person who has passed away. There are a number of ways that the validity of a will can be challenged.

Grounds for contesting a will

1. The will was not executed in accordance with the legal requirements for a valid will

Gemma Leppard
Partner & Head of Dispute Resolution

Where there is concern that a will may not be valid the first consideration is whether the will has been properly executed. This can usually be dealt with by contacting the witnesses to the will. This may involve contacting the witnesses to the will in order to obtain further detail as to the circumstances of its execution. There are certain requirements that must exist for a will to be valid (section 9 of the Wills Act 1837).

A will must be:

• in writing
• signed by the testator
• the testator must intend when signing the will for it to be valid
• the testator’s signature must be acknowledged in the presence of at least 2 witnesses. It is important to note that beneficiaries under a will should not be witnesses.

If it can be established that the will has been properly executed, there is a presumption that it is valid, unless one of the grounds set out below may apply.

2. Undue influence or duress

Here it must be proved that the testator acted against their own volition, and that they were coerced or pressured into making a will that that they did not wish to make.
The person challenging the will must establish that actual undue influence took place and produce evidence to satisfy a court. If they do so, the will would be found invalid.

3. The testator did not have the required mental capacity

The person challenging the will here must set out real suspicion that the deceased lacked the required capacity to make a will. For wills made post April 2007, the Mental Capacity Act 2005 sets out the test for capacity.

The initial presumption under the Act is that the person has capacity. A person will lack capacity if, at the time in question, he is unable to make a decision for himself because of an impairment of, or a disturbance in, the functioning of the mind or brain.

In a claim of this nature, the medical records of the deceased, and the opinion of a suitably qualified medical expert, are crucial.

4. Forgery and fraud occurred in relation to the will

If it can be proved that a will has been forged (usually the forgery of the signature of the testator), it will be invalid. The opinion of a handwriting expert as to whether the testator’s signature/handwriting is genuine can be crucial here. The expert will want to compare original samples of the deceased’s writing and signatures. If the report is not conclusive a claim is unlikely to succeed.

Few wills are in practice challenged on the basis of fraud as it can be difficult to prove, particularly as the testator has passed away.

If the Will is held to be invalid, any earlier Will made will apply. If there is no earlier Will, the rules of intestacy will apply.

When to challenge a will

Although there may appear to be grounds to contest a will, it is important to consider the principle of proportionality. A careful analysis of the facts and likely outcome will need to be undertaken. Contesting a will can be expensive and time consuming.