Whatever the type of will dispute, our guide explores what you need to consider and what is possible if you are thinking of contesting a will whether this is in relation to the way that the will has been made or the way the will is being executed.
Wills & probate
A will is a legal document, which if drafted and executed correctly, distributes the Testators (the person making the will) property, money, assets etc, after their death. A will should state who is to inherit from the estate and the persons who are responsible for administrating the estate (known as Executors). The process of distributing the estate is known as probate.
Making a will
If you die without making a will, the rules of intestacy dictate how your property and money will be distributed. This may not accord with your wishes and ultimately lead to an inheritance dispute following your death. For example, if you have been co-habiting with a partner who dies, you will not be entitled to any monies pursuant to the intestacy rules. This is the position even though you may have been co-habiting for a considerable period.
Further, if you die without making a will, then everything you own could end up going to the State rather than the people you intended to benefit. By making a will you can also make use of tax planning opportunities which could save your beneficiaries (people inheriting from the Estate) substantial monies.
In order to minimise the risk of a will being challenged after the Testator has died, a will should be drafted by a solicitor.
How to contest a will
It is a well-established law that
This may result in a bizarre distribution, but if it is in accordance with the deceased’s wishes, a disappointed beneficiary may have difficulties in contesting a will.
If, however, a will does not include the true intentions of the person making the will, or if the will has not been executed correctly, it may be invalid. If the will is invalid, the estate is distributed in accordance with the last valid will, failing which the intestacy rules.
There are a number of grounds to contest a will as detailed below.
Contesting a will
a) Lack of testamentary capacity
A person making a will must be of “sound mind, memory and understanding” when making a will. The law relating to whether a person has sufficient mental capacity to understand the content of his will was established in the case of Banks v Goodfellow [1869270] which stated that the Testator must:
- Understand the nature of his/her act and its effects;
- Understand the extent of the property which he/she is disposing;
- Be able to comprehend and appreciate the claims to which he/she ought to give effect;
- And must not be effected by any “disorder of the mind”.
If you wish to contest a will based upon lack of testamentary capacity, please read our article Contesting a will: mental capacity.
b) Undue Influence/Coercion
One of the grounds for contesting a will is that the person who made the will was subjected to undue influence, i.e. the will did not include the testators true intentions due to pressure exerted by a third party. The law defines pressure as being coercion, which may take several different formats. It can cover “physical violence, verbal bullying, or simply talking to a sick person who is seriously ill in such a way that the person may be induced for quietness sake to do anything”. The key question to be determined when contesting a Will is whether the conduct is such that it overpowers the will of the testator.
If you wish to contest a Will based upon undue influence, please read the our article, Contesting a Will : undue influence.
c) Lack of Knowledge and Approval
Where a will has been executed in suspicious circumstances, but there is insufficient evidence to prove undue influence, to be valid, the Court must be satisfied that the testator understood and approved the contents of his will. Where a will has been executed correctly and the testator had the necessary testamentary capacity, knowledge and approval will be presumed. However, there are certain circumstances, which are detailed below, whereby it must be proved that the testator had the necessary knowledge to understand the content of their will and that they approved the content, namely:
- If the testator is deaf and/or dumb;
- Cannot speak or write or is paralysed;
- Blind or illiterate; or
- The will is alleged to have been signed by another person for the deceased at his discretion.
If you wish to contest a will based upon knowledge and approval, please read our article Contesting a Will : knowledge and approval.
d) Wills Act 1837
To be valid a will must comply with section 9 of the Wills Act 1837, namely:
- It must be in writing and signed by the Testator;
- The Testator must have intended by his signature for the will to be valid;
- The signature must be acknowledged by the Testator in the presence of two or more witnesses present at the same time; and
- Each witness either:
- attests and signs the will; or
- Acknowledges his signature, in the presence of the Testator.
If you wish to contest a will based upon section 9 of the Wills Act 1837, please read our article: Wills Act 1837.
e) Forgery and Fraud
If it can be proved that a will has been forged or the person allegedly making the will signature has been forged, this will result in the will being invalid. Fraud is defined in criminal law as being “an intentional deception made for personal gain or to damage another individual”. Either ground, if proved will result in the will being invalid.
If you wish to contest a will based upon forgery and/or fraud, please read our articles:
Challenging a Will
If none of the above grounds apply, it may still be possible to contest a will based upon either rectification or the Inheritance (Provision for Family and Dependents) Act 1975.
f) Rectification
Solicitors specialising in probate matters are often faced with disappointed beneficiaries who comment after seeing a will of a loved one that “those cannot be the wishes of the deceased”. If the wishes of the deceased have genuinely not been included within a will there may be a claim for the will to be amended. This is often referred to as being a claim for “rectification”.
Section 20 of the Administration of Justice Act 1982 provides the grounds for rectifying a will, namely:
“If the Court is satisfied that the Will is so expressed that it fails to carry out the testator’s intentions, in consequence of a:
- Clerical error; or
- Failure to understand its intentions.
It may be ordered that the will should be rectified so as to carry out its intentions.
If you wish to contest a will based upon rectification, please read our article Contesting a will : rectification.
g) Inheritance (Provision for Family and Dependents) Act 1975
If it can be shown that you are financially dependent upon the deceased and insufficient monies have been left to you, it may be possible to bring a claim for reasonable financial provision. In addition, certain categories of family members may also be entitled to bring a claim for reasonable financial provision. The law relating to such claims is detailed in the Inheritance (Provision for Family and Dependents) Act 1975.
The classic cases pursued under the above often include partners of a loved one or adult children who have not inherited any monies from their parents. If you wish to contest a will based upon the Inheritance (Provision for Family and Dependents) Act 1975 please read our articles:
h) Removing and substituting executors
Executor’s duties are defined in what is called “the executor’s oath” and found at section 25 of the Administration of Estates Act 1925.
In a nutshell an executor’s role is “to collect and get in the real and personal estate of the deceased and administer it accordingly to law”. If as a beneficiary you do not believe the executor is capable of fulfilling the above role or is acting insufficiently, it may be possible to apply to the Court to remove the executor and appoint another executor.
If you wish to remove an executor from the administering an estate, please read our articles:
i) Contesting a will
Will disputes can be very complex. The above is intended as a guide only. Solicitors often see individuals who have started claims contesting a will, sometimes based upon raw emotion, who if they had obtained legal advice at the outset, could have saved themselves substantial time and money.
For a free initial no obligation chat regarding contesting a will, please do not hesitate to contact us.
