Contesting a Will can seem daunting, but by seeking legal expertise from the outset you can obtain clear guidance on the legal options available to you.
Grounds for contesting a Will
• Testamentary capacity
For a person to make a valid Will they must be of sound mind.
For a Will to be valid, a person must:
o Understand the nature of making a Will and its effects;
o Understand the extent of the property of which they are disposing;
o Be able to comprehend and appreciate the claims to which they ought to give effect;
o Have no disorder of the mind which perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.
If there are any concerns about the above elements, this could be a starting point when challenging a Will on the grounds of a lack of testamentary capacity.
• Lack of valid execution
The legal presumption is that a Will has been validly executed unless there is evidence to the contrary that shows it has failed to meet one or more of the following requirements:
o The Will must be in writing and signed by the testator or signed by someone else in their presence, who has been directed to do so by the testator;
o It must appear that the testator intended by their signature to give effect to the Will;
o The testator’s signature must be made or acknowledged in the presence of at least two witnesses, present at the same time;
o Each witness must either attest and sign the Will or acknowledge the signature in the presence of the testator, but not necessarily in the presence of any other witness.
• Lack of knowledge and approval
A person must have knowledge of, and approve of, the content of their Will.
You can contest a Will on the basis of a lack of knowledge and approval even if the Will appears to be validly executed and the testator had mental capacity.
It must be shown that the testator was not aware of the content of the Will or that there were suspicious circumstances.
At Kirwans we can advise you on whether you have grounds to challenge a Will if you are concerned about the lack of knowledge and approval of the Will.
• Undue influence
If you have concerns that a person prepared the Will whilst unduly influenced, coerced or under duress, you must show ‘actual undue influence’ in order to contest the Will on this ground.
It is important to remember that the law does not automatically presume that, because a person in a position of trust has received assets from another person, it is as a result of undue influence.
The evidence needed to prove undue influence must be of a high standard for the Court to be willing to accept arguments on this ground.
If you believe that a person has made a Will as a result of significant coercion by another person or you are facing such a claim, Kirwans are on hand to guide you through your legal journey.
• Fraudulent Wills and forged Wills
You are able to contest a Will if you believe it was forged or fraud has taken place. This is a serious accusation and the Solicitor will need to see evidence which they reasonably believe shows, on the face of it, a case of fraud. Suggesting that any person is guilty of a crime, fraud or misconduct is extremely serious. The Police may be involved to look into potential criminal implications. Handwriting experts may also be called upon.
The Solicitors’ Code of Conduct sets out that a fraud allegation cannot even be raised unless such allegations:
(a) go to a matter in issue which is material to the client's case; and
(b) appears to the solicitor to be supported by reasonable grounds.
We here at Kirwans will be on hand to advise and guide you, whether you are looking to bring a claim based on civil fraud or forgery, or defending an accusation of fraud.
A Will may be rectified where it fails to carry out the testator’s intentions. This may be due to an administrative error or the failure on the part of the person preparing the Will to understand the testator’s instructions.
We can advise you on negligently drafted Wills, claims for rectification of a Will or claims regarding the construction of a Will.
Our team of Contentious Probate solicitors includes leading litigators that have vast experience in acting for beneficiaries, family members, executors, trustees and administrators in Will disputes.
We are here to guide you through any complexities that may arise and will ensure that you have a clear understanding of the process and the potential outcomes of the legal action involved when contesting a Will.