There a numerous grounds upon which the validity of a Will can be challenged after someone’s death. Below, we highlight some of the most common grounds and explain what the Inhritance Disputes team at WBW Solicitors can do for those affected.
A Will can be challenged if the person who made the Will (the testator) lacked mental capacity, known as testamentary capacity, when they made their Will.
A second ground is undue influence, which is where the testator has been coerced into making the Will.
Lack of knowledge and approval
A Will can also be challenged on the basis that the testator did not know or approve its contents. It can be sufficient to show that the Will was executed in suspicious circumstances.
Lack of due execution
The law requires a Will to meet specific formalities. This includes things such as the way in which the Will is signed. If the formalities are not followed, the Will is invalid.
Perhaps quite an obvious one, but a forged Will would not be valid.
Whilst very rare, a Will obtained by fraud would also be invalid. Examples are where someone has told the testator lies about a potential beneficiary which have led to the testator excluding them under the Will. This is known as fraudulent calumny.
A mutual Will is created when two people make Wills at the same time and they agree not to change the Wills in the future without one another’s agreement. Whilst a later Will made by one without the consent of the other would not be invalid, the provisions of the Will may not be enforceable.
How can I find out whether any of these apply?
We start by investigating the circumstances surrounding the preparation and signing of the Will. If the Will was may by a Solicitor, we would obtain a copy of their file in the first instance. We would also secure and review medical records, care records and social services records. Obtaining statements from key witness would also be very important.
How can I protect my position while I investigate a claim?
A caveat can be entered at the Probate Registry. This prevents the Will from being admitted to probate. A Grant of Probate is usually required for an Executor to deal with large assets like any house or land, and sizeable bank accounts, shareholdings or investments.
How will I be able to make my claim?
Once we have sufficient evidence, we will contact the executors and beneficiaries of the disputed Will and present your case.
If necessary, you can make a claim in Court and if you are successful, the Court will declare that the disputed Will is invalid. If there is an earlier Will, the earlier Will may be admitted to probate. If there is no earlier Will, the estate will be administered under intestacy. The Court will usually order that if anyone argued that the Will is valid, they must pay your legal costs.
Because Court proceedings are lengthy and expensive, we usually recommend first attempting to resolve the dispute by mediation or negotiation of a compromise agreement.
Seeking guidance at an early stage from an experienced specialist in inheritance disputes is key. Whether you want to contest the validity of a Will, you are a beneficiary defending such a claim, or you are an executor to a disputed Will, we can help.