Challenging the validity of a will

We’ll be on your side during the toughest of times

If you are concerned about the validity of a Will, it is important to seek legal advice as soon as possible. We can provide advice about whether you may have grounds for challenging it.

Realising after someone has died that their Will is wrong or hasn’t been created correctly can bring up a whole range of emotions, from sadness to anger and frustration.

There are a number of grounds for challenging a Will. Perhaps the testator (the person who made the Will) lacked testamentary capacity; maybe someone forced them into making the Will; or perhaps the testator simply didn’t make it properly, for example, the Will document is not signed.

Whatever the issue, it’s likely to be very stressful for you. You may have missed out on inheritance because of the issues, or you may be worried that your loved one’s final wishes are not being respected. The nature of the dispute probably means that you are also in a dispute with close family members, which often means that tensions are at risk of spiralling out of control and landing everyone in court.

During this time, you need advice from someone you can trust to be completely on your side.

Our solicitors are Law Society accredited in the Wills and Inheritance Quality Scheme. We specialise in Will disputes and other contentious probate matters. We can provide practical advice, a listening ear during hard times, and fierce representation during any legal proceedings.

We can help you challenge a Will, or defend against a Will challenge, ensuring your best interests come first at all times.

Get in touch with our Will dispute solicitors

Rely on us to help you out during this difficult time. Our Will dispute solicitors can help you take all sorts of action, from taking legal action to interpret the terms of a Will to getting a Will set aside completely.

Give us a call at your local branch in Stroud or Gloucester, or fill in our online enquiry form for a quick response.

What are the grounds for contesting a Will?

There are a number of different grounds on which to challenge the validity of a Will, including:

• Lack of testamentary capacity (the testator didn’t have the mental capacity to make the Will)
• Undue influence
• Fraud or forgery
• Invalid execution
• Lack of knowledge and approval

Lack of Testamentary Capacity

 When someone makes a Will, they must have sufficient mental capacity, referred to as ‘testamentary capacity’. For example, a person with advanced Alzheimer’s disease may not have the testamentary capacity to make a Will.

However, the freedom to make a Will is very important, so proving lack of testamentary capacity can be complex.

The legal test is given in the landmark case of Banks v Goodfellow 1870, which provides that a person making a Will (a testator) must:

1. Understand the nature of making a Will and its effects.
2. Understand the make-up and value of the estate being disposed of in the Will.
3. Understand and appreciate the claims to which the person making the Will ought to give effect (for example, who is being included in, or excluded from, the Will).
4. Be of ‘sound mind’, which has a specific legal meaning.

Each of these points could be used as a ground for challenging a Will.

Undue Influence

A person making a Will may be unduly influenced, coerced or placed under duress by another individual to such a degree that it destroys their free will. This is common with older people and people who have testamentary capacity but are vulnerable. Unfortunately, it is often the people closest to the testator who apply the undue influence, such as a carer, a neighbour, a friend, or even a child of the testator.

A claim of undue influence will need evidence to a high standard. But if you suspect that undue influence took place, do not hesitate to get in touch with our contested Will solicitors. We will take a look at the matter and provide advice about your prospects for making a claim.

Spotting the signs of undue influence

There are some tell-tale warning signs that often come up in cases of undue influence, including:

• The testator became withdrawn before they died
• The testator made last minute changes to their Will
• The changes were odd or unexpected, for example, the testator’s children were disinherited, or people who had only recently become close to the testator were included as beneficiaries
• The testator was dependant on the beneficiary for care, housing, friendship or other support
• The testator was vulnerable, for example, they had a serious illness
• The Will was not made with the help of a solicitor

This is not an exhaustive list, so if you have any other concerns not listed here, get in touch, and we can provide advice.

Fraud or forgery

A Will may also be invalid if it can be shown to be a forgery or the subject of fraud. For example, if someone makes a Will pretending to be the ‘testator’, gifting themselves all the ‘testator’s’ money and property, this would be fraud.

A Will fraud might also occur where the testator’s most up-to-date Will is destroyed so an earlier Will can take its place; or where the testator is convinced to make a gift to someone based on a lie.

Forgery and fraud are serious enough that a person can also be criminally prosecuted for it. However, it is still very difficult to prove that forgery or fraud took place because the person who could have confirmed the fraud – the ‘testator’ – is dead.

We can provide advice about challenging a Will on the basis of forgery or fraud, giving you the best possible chance of achieving a positive outcome.

Lack of Due or Valid Execution 

Whilst there is a legal presumption that a Will is valid, a Will may be challenged as invalid if it does not meet one of the requirements of section 9 of the Wills Act 1837:

1. The Will must be in writing, and signed by the testator, or by some other person in their presence and at their direction
2. It must appear that the testator intended, by their signature, to make the Will effective
3. The testator’s signature is made or acknowledged in the presence of two or more witnesses present at the same time
4. Each witness either attests and signs the Will or acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness).

Video Wills

During the Covid-19 pandemic, it became possible for testators to get their Will witnessed over a video link, such as Zoom or Skype. However, it is still required that the witnesses had a clear line of sight, and other traditional execution requirements were observed. We can provide advice about challenging a Will that was made over a video link.

Lack of knowledge and approval

The testator must have knowledge and approval of the Will and its contents.

Lack of knowledge and approval of a Will may arise, for example, as a result of a mistake in the preparation of a Will.

Get in touch with our Will dispute solicitors

We have a dedicated Wills, Trusts and Probate team who are accredited for excellence under the Law Society’s Wills and Inheritance Quality Scheme. If you have any concerns about challenging a Will, then please get in contact with a member of the team today, and they will be able to help you further.

Give us a call at your local branch in Stroud or Gloucester, or fill in our online enquiry form for a quick response.