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Contesting a Will

So far, I have looked at the ways of challenging the will under the Inheritance (provision for family and dependants) Act on the grounds that the wil,l as drafted, did not make reasonable provision for the beneficiary. I would now like to look at ways that the validity of the will itself might be challenged.

Grounds For Contesting a Will

Its always difficult to lose a loved one and probably the worst time to engage in a legal dispute if you think the will does not reflect their true wishes, but there are a number of ways a will can be challenged.

What are the requirements of a valid will?

Under Section 9 of the Wills Act 1837 to be valid will a will must be :

1. In writing

2. Signed by the testator

3. Intended by the testator to be valid when signing

The signature must be acknowledged by being signed by two witnesses present at the same time.

The first thing to consider then is whether the will is validly executed. The witnesses can be contacted and asked relevant questions.

What are the grounds for contesting a will?

Lack of Mental Capacity

Pre April 2007, the test applied is that in Bank V Goodfellow, namely that the testator must:

1. Understand the nature of making a will and its effect

2. Understand the extent of his/her property

3. Be able to comprehend and appreciate the claims to which he/she ought to give effect

4. Have no disorder of the mind which shall poison l his her/her affections or pervert his or her sense of right and wrong in disposing of property through the will

After April 2007 the court is required to give effect to the terms of Sections 1&3 of the Mental Capacity Act 2005, under which the initial presumption is that a person has capacity. He/she will lack capacity, if at the time in question, he/she is unable to make a decision for themselves because of an impairment of, or a disturbance in the functioning of the mind or brain. This will require a review of the deceased’s medical records and an expert’s opinion sought in order to prove this ground.

Undue Influence

For such a claim to succeed it is necessary to prove that there is no other reasonable explanation for the testators actions other than undue influence. That is to show that the testator acted against his volition and that they were not coerced into making a will they did not wish to make.

Such claims are difficult, not least because the chief witness is dead. Caution is therefore required before launching such a claim.

Clerical Errors

If the will does not accurately record the true intentions of the deceased, the court may rectify the will so that it does. Remember that the main witness is dead and so the error can be difficult to prove. It is essential in such cases to obtain the solicitors file and obtain a statement from the solicitor.

If you have anymore questions about contesting a will or would like to start proceedings to contest a will then please contact me.

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