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The Will says what? You cannot be serious!

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The Will says what?  You cannot be serious!

'if something does not seem quite right about a will, it is best to investigate the matter sooner rather than later in order to come to an informed decision about whether to contest the will'

Geoffrey Kertesz

Partner

Contesting a will can be an emotional process. It can also be practically difficult because the key witness, the person whose will it is (the ‘testator’), can no longer shed light on what happened.

However, if something does not seem quite right about a will, it is best to investigate the matter sooner rather than later in order to come to an informed decision about whether to contest the will. If you think a will is invalid, you should consider asking a solicitor to enter a ‘caveat’ for you in the meantime. A caveat prevents the executor from starting to administer the estate, by paying the deceased’s debts and distribute the deceased’s assets.

You can contest a will on six grounds:

1. The Testator did not have ‘testamentary capacity’

A Testator must understand:

  • what a will is and how it gives effect to his wishes being carried out after death;
  • the type and amount of the assets passing under the will; and
  • potential beneficiaries and who might make a claim if an estate goes one way rather than another.

Also, a person making a will must not be affected by ‘any disorder of the mind’.

Claims based on mental capacity are highly fact-specific and are likely to require expert evidence. If a will appears rational, as a starting point the legal position is that one presumes that the testator had mental capacity. However, if a will seems irrational or out of character for some reason, it may be that the testator did not in fact have mental capacity and investigations should then be undertaken.

2. The Testator did not ‘know and approve’ of its contents

The testator must understand that the document he is signing is his will and that it represents his intentions as to what will happen to his assets after he dies.

If a will contains complicated provisions that the testator would not understand and had not been explained to him, or was prepared by someone who benefits under it, the person putting the will forward must prove that the testator knew the document he signed was his will and understood its effect. The simpler the will, the more likely a testator ‘knew and approved’ of its contents.

3. The will is forged or is the result of fraud

If someone who wants to benefit under a will lies to the testator, and the testator then prepares a will on the basis of those lies, the will may have been procured fraudulently and therefore may be invalid. Alternatively, a will may simply be forged.

Fraud and forgery can be hard to prove. Also, because the allegation is so serious, careful thought needs to be given when deciding whether to make such a claim because an unsuccessful challenge on fraud or forgery grounds may result in your having to pay the other side’s legal costs.

4. The Testator was coerced into doing so

If it can be shown that the testator was coerced into making a will he did not want to make, the will is invalid. Pressure and persuasion is not enough; actual coercion must have taken place. The level of coercion necessary depends on the strength of the testator’s willpower, which might be affected by mental or physical disability or frailty.

5. The will has been revoked

There are three ways a will is ‘revoked’, which means it is treated as having no legal effect.

  • Firstly, by marriage: If the testator makes a will and later marries or enters into a civil partnership, a will is automatically revoked unless it specifically states it was in contemplation of marriage.
  • Secondly, if the testator destroys a will with the intention of revoking it.
  • Thirdly, a subsequent will revokes a previous will.

6. The will was not executed properly

Generally speaking, a will must be signed by the testator in the presence of two witnesses who are there at the same time. The two witnesses must then ‘attest’ the testator’s signature by signing the will themselves.

There are exceptions, for example where a testator is physically unable to sign the will personally.

Alternatives to contesting a will

If you think the will is valid but that it does not provide adequately for you, you may want to think about making a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Also, if someone made a promise to you about what would happen after they die and do not make good on that promise, you may have a claim in ‘proprietary estoppel’.

14 Jul 2016

Geoffrey Kertesz