You can contest a Will in two different ways. You can contest the Will’s validity or alternatively, some category of claimants can make a claim against the estate under the Inheritance (Provision for Family and Dependants) Act 1975 if they have not had reasonable provision made for them.
When contesting a Will’s validity, you can make the claim based on several different factors.
Testamentary capacity: If the testator (the person that made the will) did not have good mental capacity at the time they made the Will, then this could render it invalid.
Undue influence: Where a testator was pressured into making a specific Will, the gift from this Will can be taken away from the person that pressured the testator.
This is more likely to be successful where the individual is suffering from a lack of sufficient mental capacity or significant health problems which may impact their judgment. To be successful in this type of claim, it needs to be demonstrated that someone has forced or pressured the testator to make the Will they made, as persuasion alone is legal.
Want of approval and knowledge: This is questioning whether the testator and fully understood and accepted the Will and its details when signing it. For example if the testator was deaf or blind when signing it this would be unlawful.
Lack of due execution: Making a claim on the grounds of lack of due execution means questioning if the Will was signed and witnessed properly. If it was not done properly this will render it invalid.
Forgery: It can be claimed that the signature on the Will that was made by the testator was actually forged by someone else making the Will invalid.
Fraudulent calumny: Here the testator could have been talked into excluding someone from the will under false pretences which renders the Will invalid.
Reasonable Provision Claims
We have two competing laws in this country. One says that a person can do what they want with their estate. This is known as testamentary freedom.
However the Inheritance (Provision for Family and Dependants) Act 1975 says that certain category of people can challenge an otherwise valid will if they have not had “reasonable provision” made for them.
The categories of people that can apply are:
- The deceased’s spouse or civil partner
- an unmarried partner who lived with the deceased for two years or more prior to their death
- A child, or adopted child of the deceased
- A person who had been treated as a child of the deceased (often a step-child)
- Anyone who was financially dependent upon the deceased
You can make a reasonable provision claim whether a person left a will or whether the estate is being dealt with under the intestacy rules.
Whatever your situation, it is always best to discuss the matter with a specialist lawyer to give yourself the best chance of your claim being successful.
Email Contentious Probate specialist, Edward Powell or call 01206 766 333.