Will disputes have undoubtedly become much more common in recent years. Two major reasons for this are the rise in more diverse family arrangements and the rise in property values, which makes the reward of a successful challenge more valuable. In general, there are two grounds for contesting a will: the disposition of an estate under a will. These are that the will is invalid in and off itself, and/or that the will fails to make “reasonable financial provision”.

 

Before a disgruntled beneficiary takes steps to challenge the legitimacy of a will, they should consider the impact on their entitlement to the estate if the challenge is successful. If the challenge is effective and an earlier will exists, the property will be distributed in accordance with that earlier will. If there is no previous Will, the estate will be distributed according to intestacy rules. As a result, even if a potential claimant successfully challenges the validity of a will, they may not receive a larger share of the estate.

 

Contesting a Will: The Validity of the Will in Question

Wills in the UK are commonly challenged for the following reasons:

 

Lack of Due Execution

The formalities of a valid will are outlined in section 9 of the Wills Act of 1837. This necessitates:

• It must be documented in writing.

• It must be signed by the testator or signed on their behalf. In the presence of two witnesses, the testator must sign or acknowledge their signature.

• In the presence of the testator, the witnesses must sign or acknowledge their signatures (but not necessarily in the presence of each other)

 

With the rise of do-it-yourself wills, there has been an increase in the number of wills that do not comply with section 9 of the Wills Act 1837, and thus an increase in disappointed beneficiaries.

 

Revocation

Marriage or civil partnership automatically nullifies a will. It can also be revoked in accordance with Section 20 of the Will Act of 1837 by:

• Another will (or codicil).

• Something in writing declaring an intention to revoke, executed in the same way as a will.

• Burning, tearing, or otherwise destroying the will to revoke it.

The testator must have been of sound mind when making the will. The recent case of, Walker v Badmin [2015] ,clarified whether the Mental Capacity Act 2005 replaced the test established in the historic case of Banks v Goodfellow [1870]. The High Court has ruled that at common law, Banks v Goodfellow test for testamentary capacity is “the correct and only test.” As a result, a testator must:

• Comprehend the nature of the act and its consequences.

• Understand the nature and scope of the property they are disposing of.

• Be able to recognise the claims to which they should give effect.

• Must not be affected by any ‘mental disorder’ that ‘poisons his affections, perverts his sense of right, or prevents the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about the disposal of it which, if the mind had been sound, would not have been made.

 

Lack of Knowledge and Approval

The will’s contents must be known to and approved by the testator. When a testator possessed the ability, the will was properly executed, and knowledge and permission were presumed. The presumption can be rebutted nevertheless, if suspicious circumstances surround the creation or execution of the will, such as when the primary beneficiary helped the deceased draft his or her will. This can “excite the suspicion of the court.” The weight placed on the person relying on the will, increases the level of suspicion.

 

Undue Influence

Undue influence occurs when a testator is coerced into making a will that they do not want to make. What constitutes coercion will be determined by the testator’s strength of will or vulnerability. In contrast to lifetime transactions, there is no presumption of undue influence based on the circumstances; actual undue influence must be proven. The person making the allegation bears the burden of proving that there was undue influence.

 

About Van Eaton Solicitors

In probate disputes, we work closely with personal representatives and potential beneficiaries. Our top priority is always to prevent an estate’s assets from being depleted unnecessarily through protracted legal proceedings. Our work in this area has two components:

 

• Handling beneficiary and potential beneficiary claims.

• Representing personal representatives who are facing a claim against the estate.

 

Whether you believe you have been unfairly denied a share of a deceased loved one’s estate or you are in charge of administering an estate that is the subject of a claim, our probate dispute solicitors in London will guide you through the legal process with compassion. We provide a no-obligation consultation to discuss your situation and advise you on the viability of filing a claim. Whatever the scope of your contentious trust or probate dispute, we have experience dealing with a wide range of cases and providing effective legal advice.

 

If you are seeking advice on a probate dispute, contact our probate dispute solicitors in London online or by phone on 0208 769 6739 or complete the online form. We will respond promptly to your inquiry.