Reasons why a Will might be contested – quick guide

Posted Feb 14, 2019.
As solicitors specialising wills and lasting power of attorney, we sadly often witness to the closest of family relationships being negatively affected by money, especially when it involves execution of the will of a recently deceased loved one. A will is often be contested by family members and potential benefactors, especially if the will was not drawn up properly by a solicitor. Contesting a will often combines feelings of betrayal and disappointment with the raw emotion of bereavement, and can prove to be a very stressful experience.

There are a number of main reasons why a will may be contested; we have outlined the top 6 below:

Undue Influence


If you think that a will was made following significant coercion by another person, or someone else is making such a claim, proof will be needed that the deceased (the ‘testator’) was under ‘actual undue influence’. Such evidence needs to be very robust, to the extent that there are no other reasonable reasons that explain the terms of the will. Having said this, there has also recently been a trend in courts willing to consider arguments that individuals have been unduly influenced.

Forged or Fraudulent Wills


A will can be contested if you believe that it was either forged or some other fraud has taken place. A common example is a forged signature on a will; others include lies and false statements made during the drafting of a will that are proved to be fraudulent.
 

Being of Sound Mind


For a will to be valid, the person making the will must be of sound mind – known as having ‘testamentary capacity’. The law here has developed over the past 150 years, but the basic principles have remained the same; for a will to be valid, the person must:

Understand the consequences of deciding who is included or excluded
Understand that they are making a will
Not be suffering from any ‘disorder of mind’
Understand the nature and scope of their estate being bequeathed in the will

Knowledge and Approval


The person making the will must understand what they are signing for. They must have full knowledge of the will’s contents and approval of such content. Some wills that, on the surface, appear to have been made with full knowledge and approval can, upon further investigation, be found to include unknown elements that can result in the will be contested.

Valid Execution


The execution of a will must be carried out properly and legally. The basic legal position is that the will has been validly executed unless there is evidence to the contrary. For a will to be contested otherwise – known as ‘lack of due execution’ – it must fail to meet one of the following criteria:

The will must be in writing, signed by the testator (or by someone else in the testator’s presence who has been authorised to do so) in the knowledge that the signature is to give effect to the will.
The testator must sign the will in the presence of a minimum of two witnesses, both present at the same time
The witnesses must either attest and sign the will or acknowledge the signature in the presence of the testator.

Construction and Rectification issues


Contesting a will via a construction claim can occur if the words in the will are ambiguous or unclear. In such instances, the court will determine the actual meaning of the words contained in the will. A will can also be rectified if it fails to carry out the testator’s intentions because of a lack of understanding of such instructions, or should there have been a clerical error. 

Help with Wills

If you need help with a will or a lasting power of attorney, Bakers Solicitors have friendly and approachable experts who are here to help. Call now on (01252) 744637 and speak to Simon, our Estate Planning Manager, or email simon.speed@bakerssolicitors.com.