Anna Sutcliffe, solicitor at Wright Hassall LLP, outlines the grounds for contesting a will.

Losing a loved one is never easy, and if you suspect that their will may not reflect their true wishes, it can make an emotional time especially difficult.

There are a number of ways that the validity of a will can be challenged. But it’s not a decision to be taken lightly. It’s imperative to consider whether a successful claim would actually produce a better result than the existing will.

For example, if there is no earlier will, the rules of intestacy will apply. But if there is an earlier, unchallenged will, the terms of that document will take effect.

Here are the requirements of a valid will, and a summary of the main ways in which a will may be challenged.

Requirements of a valid will

Section 9 of the Wills Act 1837 confirms that for an order to be valid, a will must be:

• in writing
• signed by the testator (or someone else in the testator’s presence and at his direction)
• the testator must intend when signing the will for it to be valid

Also, the testator’s signature must be acknowledged in the presence of at least 2 witnesses.

If there is concern as to whether a will is valid, the first thing to consider is whether it has been properly executed. This may involve contacting the witnesses to the will in order to obtain further detail as to the circumstances of its execution.

If the will has been properly executed, the presumption is that it is valid, unless one of the concerns set out below arises.

Grounds for contesting a will

1) The deceased did not have the required mental capacity

The person challenging the will must raise a real suspicion that the deceased lacked capacity. If they achieve this, the burden passes back to those seeking to prove the will, to establish that the deceased did have capacity.

Test for wills pre-1 April 2007

Generally, the test which is applied is in Banks v Goodfellow [1870] LR 5 QB 549, which states that the testator must:

• understand the nature of making a will and its effect
• understand the extent of his/her property
• be able to comprehend and appreciate the claims to which he/she ought to give effect
• have no disorder of the mind which ‘shall poison his affections, pervert his sense of right, or his will in disposing of his property’

Test for wills made after 1 April 2007

Capacity will be considered in relation to Sections 1 to 3 of the Mental Capacity Act 2005. It should be noted that under the act, the initial presumption is that the person has capacity. A person will lack capacity if, at the time in question, he is unable to make a decision for himself because of an impairment of, or a disturbance in, the functioning of the mind or brain.

In a claim of this nature, the medical records of the deceased, and the opinion of a suitably qualified medical expert, are crucial.

2) The deceased did not properly understand and approve the content of the will

If the court’s suspicion is aroused, it is for those seeking to propound the will to prove that the deceased fully understood how it operated and approved its contents.

Examples of suspicious circumstances could be where the deceased:

• was hard of hearing, or had a speech impediment
• was visually impaired
• had low levels of literacy
• was frail, unwell or otherwise vulnerable, and the will is particularly complex or unusual
• is purported to have directed that the will be signed by someone else

3) Undue influence

In the context of making a will, there is no presumption of undue influence. If a will is to be found to be invalid, it must be established that actual undue influence occurred. It is for those challenging the will to produce sufficient evidence to satisfy the court.

A claim of this nature should be pursued cautiously. Precedent demonstrates that for such a claim to succeed, the court will expect to be satisfied that there is no other reasonable explanation for the testator’s actions than that inappropriate influence was applied.

It must be proved that the testator acted against their own volition, and that they were coerced into making a will that that they did not wish to make.

As the nature of this allegation is tantamount to fraud, the evidential burden is high, and if a claim fails, there are likely to be serious cost consequences.

Bear in mind also that if coercion was exercised, the chief witness (ie the deceased) won’t be able to testify, and it will usually have taken place behind closed doors and in the absence of any other person.

So it can be extremely difficult to obtain sufficient evidence to convince a court that undue influence has been exercised.

4) Forgery and fraud

If it can be proved that a will has been forged, it will be invalid. At the outset, it is advisable to obtain the opinion of a handwriting expert as to whether the testator’s signature/handwriting is genuine. The expert will want to see a considerable number of original samples of the deceased’s writing and signatures. If the expert produces an conclusive report, it is unlikely that a claim would succeed.

More generally, it is possible, though rare, for a will to be challenged on the basis of fraud, ie an intentional deception made for personal gain, or to damage another individual. An example of such a claim that has succeeded is where a person impersonated the testator.

These claims will be few and far between, as there are usually more suitable grounds for challenge.

5) Rectification

A will may not reflect the wishes of the deceased due to a clerical error, or a failure to understand the testator’s intentions.

A clerical error is where a mistake is made in recording the testator’s wishes. If either scenario occurs, the court will rectify the will to give effect to the true intentions of the deceased. A claim of this nature must be issued within 6 months of a grant of probate being issued.

If it’s believed there has been a mistake in the drafting of a will, the initial steps should be to obtain and review the solicitor’s file, together with a statement of the solicitor’s understanding of the deceased’s wishes.

If it becomes apparent that the will writer understood the instructions, but incorrectly applied the law, then the will is still valid, but there may be a claim for professional negligence.

When to challenge a will

If someone has passed away, and there is concern that their will does not reflect their wishes, specialist advice should be sought. At the outset, a careful analysis of the facts and likely outcomes will need to be undertaken.

Most claims against personal estate of a deceased person may be brought up until the expiration of 12 years from the date of death. However, this is not always the case, and there are a number of notable exceptions (eg a claim for rectification as above or a claim under the Inheritance (Provision for Family and Dependants Act) 1975).

Initial investigations should be made early, before the estate has been substantially administered. Third parties can take time to respond to queries raised, and as time passes, the recollections of those able to assist may fade. If an estate has been substantially administered, this may impact on the court’s approach.

So there are a number of ways in which a will may be challenged. However, each case is unique, and advisors should obtain a good grasp of the character of the deceased, the nature of family relations, any testamentary intentions of the deceased (as expressed to friends, family or third parties) and to consider this against the contemporaneous evidence available. An informed decision can then be made whether to contest a will and if so, on what basis.

About the author

Anna Sutcliffe is a solicitor at Wright Hassall LLP. She offers specialist advice about inheritance disputes, including claims under the Inheritance (Provision for Family and Dependants) Act 1975, disputes between executors, and claims in respect of the validity of wills.

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Publication date

23 April 2015