What are the grounds for contesting a Will in England and Wales?
Dealing with the death of a loved one is an emotionally distressing and stressful time. This can be made even more challenging when provisions made in the deceased’s Will were not as expected.
Will disputes have become increasingly common over recent years, in part due to more complex family arrangements and extended families. Also, down to ever-increasing property prices making a successful challenge more valuable.
The grounds for contesting a Will are that the Will itself is invalid or that the Will does not make ‘reasonable financial provision’.
There are a number of ways that the validity of a Will can be challenged. However, it’s not a decision to be taken lightly. It’s key 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.
Grounds to contest the validity of a Will
There are four legitimate grounds that you may successfully contest the validity of a Will. They are:
Lack of testamentary capacity
In simple terms, a challenge on these grounds requires you to prove the person making the Will (testator) lacked the mental capacity to understand what they were doing.
Duress or undue influence
There is a subtle but important difference between the two definitions. Duress relates to threats of physical harm to the person making the Will, whilst undue influence refers to someone in a position of trust working to influence the distribution of the estate.
Fraud
Fraud commonly takes the form of making changes to the document either by inserting or replacing pages or forging signatures. Fraud also extends to the testator making changes to their Will in good faith as a result of misinformation presented to them.
Incorrect process
By law, a Will must be signed by two independent witnesses who have nothing to gain from the estate in question. Like the testator, those individuals must also have the mental capacity to act as witnesses.
It’s important to remember that should you witness a Will in which you are named as a beneficiary, you will not be able to inherit.
Contesting a Will that does not make 'reasonable financial provision'
Even if the Will is valid, close family may apply for a share of the estate on the basis that the Will doesn’t reasonably provide for a relative or dependent, by claiming under the Inheritance (Provision for Family and Dependants) Act 1975.
Disputing a Will on this basis would still require you to demonstrate that your treatment was unfair.
Those who can make a claim are:
- a spouse or civil partner
- a former spouse or civil partner who has not remarried or registered a new civil partnership (provided a court order was not made at the time of the separation that specifically prohibits them from bringing such a claim)
- any person cohabitating with the deceased as ‘husband and wife’ for at least two years immediately prior to the deceased's death
- a child of the deceased
- a person treated by the deceased as a ‘child of the family’
- any other person who immediately prior to the deceased's death was being maintained by the deceased
As a general rule, any challenge to a Will must be made within six months of probate being granted. If more than six months have passed, you will likely need to apply to the court for permission to make your claim.
If you want to dispute whether a Will is valid, there is no time limit to making a claim. However, in all cases, it is best to investigate whether you have a claim as soon as you can.
For further information and trusted legal advice regarding Will Disputes, get in touch with us at Carlsons Solicitors.