A Will is presumed to be valid until proven otherwise. If you decide to contest a Will based on it’s validity you will need to be able to prove that there was wrongdoing whilst it was being created.
A Will can only be contested once the Testator has passed away and it must be done within six months from the Grant of Probate being issued. Raising a dispute after this time period would hinder your chances of a successful outcome.
When deciding to contest a Will your first step should always be to consult with your Solicitor. Unfortunately no Solicitor will be able to guarantee that you will win your case.
Lack of Execution
For a Will to be valid, it must.
- Be in writing and signed by the Testator.
- Be signed in the presence of at least two witnesses who will also attest and sign the document.
- It must not be forged.
There are several other reasons you may want to contest a Will.
Lack of testamentary capacity
- A Testator must have the mental capacity to be able to make their Will.
- They must understand the consequences for who they are listing as beneficiaries and who they are choosing to exclude.
- They must understand the entire value of their entire estate.
For you to be able to contest a Will based on lack of mental capacity you will need to be able to prove this. Normally with medical records and testimonies from the Testator’s medical team.
- All of the decisions made should be that of the Testator.
- They must not be coerced into making any of the decisions from outside influences.
Undue influence gives grounds to contest the Will. This can be difficult to prove though as the Testator will not be here to give their side of the story.
- A Will must only be made and signed by the Testator.
- If a Will is found to be forged then it will be declared invalid.
For most cases where a suspected fraudulent Will is involved a handwriting expert would need to be brought in as evidence.
Inheritance (Provisions for Family & Dependants) Act 1975
In cases where the Will is valid but you believe that you have not been left with adequate financial provisions you would need to contest the Will under the Inheritance (Provisions for Family & Dependants) Act 1975.
The Court will then look into
- What provisions have been made for you.
- The size of the deceased estate.
- Your current financial situation.
- Any physical or mental disabilities you may have.
- They would then decide what they believe to be adequate provisions.
Raising your claim
When deciding to contest a Will your first step should always be to consult with your Solicitor. Unfortunately no Solicitor will be able to guarantee that you will win your case. This all depends on how solid your evidence is, if you have raised the dispute in the allotted time frame and how cooperative each party is in coming to a conclusion.
If you decide to proceed then your legal team will work to try to settle the matter out of court and in a timely fashion.
However, where emotions and family ties are tested, mediation doesn’t always work and some cases will end up having to be heard in Court. This can take several months and sometimes even up to a year and over. The final decision will then be with the Judge.