Contesting a will: Is my claim valid?

As most people will know, a Will is a legally binding document that outlines the final wishes of the property, money and possessions of a person after their death.

However, what is less known is that in some instances, the validity of a will can be challenged, however, it is not a decision to make lightly.

What are the requirements of a valid Will?

Section 9 of the Wills Act 1837 states that for a Will to be valid it must be in writing, signed by the testator, the testator must intend when the signing the will for it to be valid and the testator’s signature must be acknowledged in the presence of at least two witnesses.

If any concern arises about the legitimacy of a Will, the first thing to consider is contacting the witnesses. If the Will has been properly executed, the presumption is that the Will is valid.

What are the grounds for contesting a will?

The presumption that the will is valid dissipates if one of these concerns arises:

• The deceased did not have the required testamentary capacity – The person contesting the Will must raise a real suspicion that the deceased lacked capacity. The burden is on those seeking to disprove the Will to establish that the deceased did have the capacity to create it.
• The deceased did not understand and approve the content of the Will – It if for those seeking to prove the Will that the deceased fully understood how the will operates and approved its contents. Examples include, the deceased was hard of hearing or had low levels of literacy and no adjustments were made by the Will drafting solicitor
• Undue influence – A claim of this nature should be pursued cautiously. It must be proved that the deceased acted against their own free will and they were coerced into making a Will they did not intend to make
• Forgery and fraud – If it can be proved a Will has been forged it is invalid, this is typically proven or disproven by a handwriting expert to prove the signature is genuine
• Rectification – A Will may not reflect the deceased’s wishes due to a clerical error. If a mistake is made in during the drafting, the original Will drafter needs to be contacted to see if they understood the instructions but incorrectly applied the law. If that is the case the Will is still valid

If there is an earlier Will the rules of intestacy will take effect, allowing the earlier unchallenged Will to come into effect.

Need help to contest a Will?

Contesting a Will is no small fleet and so making the decision to do so is something that should be considered carefully and under independent legal advice.

Each case is unique and so our advisors will get a good picture of the deceased’s character before they offer advice to a client on the validity of a Will.

For advice on contesting a will get in contact with our experienced Wills and Probate team.

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