Can your Will stand up to being contested?

Our clients are always asking if it would be cheaper to do their own Will either from the stationers or online and the answer we always give is yes it is cheaper as long as you get the wording correct, you can evidence the person making their wishes known was of sound mind, the signing and witnessing was actioned properly and no undue pressure was put on the person. Below we look at the most common reasons Wills are contested and what the law says about four key areas.

  • A claim that the document is invalid
  • Dependency claims
  • Other grounds where it can be disputed
  • Who can contest?

With more and more people divorcing and children being looked after by step parents the chances of a Will being contested are increasing, certainly in the USA the level of contesting is higher than in the UK.

The government have information on the basics and covers an overview, writing, making sure it is legal and updating  your last testament click here to go to their page at GOV.UK.

We have listed below the top five reasons why it might be contested this is by no means an exhaustive list but should give some idea as to whether your Will, can stand the test of time.

  1. Not properly executed – Which can mean the witnesses did not actually witness the signature of the person making the Will or that the witness was also a beneficiary the list is as long as your arm
  2. Fraud or Duress – The person making the Will was forced to do so or it was fraudulent
  3. Writing on your Will – Writing over your last testament to make changes can invalidate the Will.
  4. Marriage – Marriage or re-marriage can invalidate the last testament, we would recommend a review of your wishes every 3 – 4 years or on any major changes to circumstance.
  5. Lack of capacity – The person making the Will must have the mental capability to make a Will and fully understand the implications of doing so.

As stated above this is not an exhaustive list and there can be many more reasons for contesting a Will!

Our processes protect against contesting  and if followed fully you will have peace of mind that a Will produced for you by us will stand the test of time.

Read on for information on what the law says about the four key areas.

A claim that the document is invalid

A Will must fulfil certain legal and procedural requirements in order to be legally valid. It may, therefore, be invalid for a number of reasons including:

  • It was not property executed: it must comply with strict legal requirements under the Wills Act 1837. It must, for instance, be in writing and signed by the testator in the presence of two independent witnesses (neither of whom should be a beneficiary, or married to a beneficiary).
  • There is evidence of fraud or duress: if the testator was forced, or it was fraudulent, the document is invalid.
  • Lack of testamentary capacity: the testator must have been mentally capable of making a Will, including understanding the implications of its contents. He or she must have been of sound mind.

It is for the claimant to prove that the Will is not valid. Strong evidence must be produced to convince the court, on the balance of probabilities, that the document is invalid. However, note that in the case of a claim based on lack of testamentary capacity – where the claimant has successfully raised a real suspicion that the deceased lacked capacity, it is then for the executors to establish that the deceased did have mental capacity.

If the court decides, on the facts and the evidence, that the Will is invalid, the estate will be administered according to the rules of intestacy – as though the document never existed.

Dependency claims

Where a dependant has not been sufficiently provided for under the terms of the Will, a claim for reasonable financial provision can be made under the Inheritance (Provision for Family and Dependants) Act 1975. A dependent for these purposes is anyone who the deceased was financially maintaining (or had a legal obligation to do so) at the time of death. Usually, dependents are surviving spouses, cohabitees, children or individuals treated as a close family member such as a disabled friend.

How will the court assess a dependency claim?

The court will consider various factors including their age and any responsibility for young children; the length and nature of the relationship between the claimant and the deceased; their contribution to the family; and what they would have received had they divorced instead of the death occurring. If the court decides reasonable provision was not made, it will then consider what is reasonable provision.

In the case of a successful claim, the court will order what it decides is reasonable provision out of the estate. This will be awarded by way of a lump sum or maintenance payments, depending on the claimant’s needs, and size of the estate and other relevant factors.

Other grounds where it can be disputed.

There are a number of other scenarios where it can be disputed, including:

  • The original document may be lost and the executor may apply to court to prove there is a Will, and obtain a Grant of Probate accordingly
  • A property may be disposed of under the terms of a last testament, however, a dispute may arise where someone other than the deceased claims that the property was owned, or part owned by them
  • Errors  unfortunately crop up from time to time. These could be drafting errors (where a clause is incorrectly written); or administrative (eg. where the wrong document is signed). Such cases can be difficult to resolve without the court being asked to rule on whether or not a clause or the Will itself is valid

Who can contest?

Anyone who has a beneficial interest, or potential beneficial interest in the deceased’s estate, can contest if they believe they have a valid claim. Typically, those who contest are the surviving spouse, children, cohabitee and other dependents, such as adult children who were being financial supported by the deceased, and children who are treated as a child of the family.

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