Who Can Contest a Will?
The law in this area is complex, a Will can be contested by a wide range of people. Each case is considered on an individual basis. However, the classes of people that may contest a Will include the following:
- Individuals or organisations promised an inheritance.
- Individuals or organisations who have been disinherited.
- Other third parties affected by the present Will or a previous Will.
- Individuals who are or were related to the Deceased or who were dependant upon the Deceased.
From the outset we will discuss your case with you and advise you as to whether you are able to contest a Will.
Contesting a Will Time Limit
It is fundamentally important to establish the correct time limit that a Will can be contested at the outset of any claim. There are a number of possible time limits in probate and inheritance claims, which will all depend upon the individual circumstances of each case.
Generally speaking, in claims to challenge the validity of a Will, there is no time limit. However, if a person delays in bringing their claim then the court may hold that as a result of this delay the person is no longer entitled to bring the claim. Further the court may strike out a claim if it is “frivolous or vexatious or is for other reasons an abuse of process”.
In claims under the Inheritance (Provision for Family and Dependants) Act 1975, the time limit is six months from the date of the Grant of Probate or Grant of Letters of Administration.
In certain other limited probate actions (mainly those brought by beneficiaries), the time limit to bring a claim is 12 years.
To avoid any problems and to ensure you do not fall foul of a time limit, it is imperative any claim is brought quickly.
Grounds to Contest a Will
The grounds on which a Will can be contested include the following:
Lack of Mental Capacity:
If a person making a Will was not of sound mind when the Will was made, it may not be valid. You may contest a Will on the basis the person making the Will was not of sound mind.
This is known as not having “testamentary capacity”. With an ageing population and the rise of illnesses such as Alzheimers, dementia and other similar conditions, there is an increasing number of challenges to Wills on the ground of lack of capacity.
Each case is different, and a Will is not necessarily invalid simply because the person had dementia or other illness. The leading case of Banks v Goodfellow (1870) established that in order for a Will to be valid, the person making the Will must have been of sound mind and had testamentary capacity at the time the Will was made.
The person making the Will must understand:
• That they are making a Will and the consequences of making a Will.
• The extent of their property.
• The claims of those who might expect to be left something in the Will.
The Mental Capacity Act 2005 provides that you must start with the presumption that a person has mental capacity. In order to evidence lack of capacity, it may be necessary to obtain evidence from various sources such as from those who witnessed the Will or from the deceased’s doctor. In some cases Lack of Knowledge can be an issue if the individual did not understand the terms of the Will.
If a person was pressured by another into making or changing a Will, the Will may not be valid.
You may contest a Will if the person making the Will was suffering significant pressure from another to make or change a Will (this could be a family member, neighbour or friend). Legally, it is acceptable for an individual to be influenced by others when making a Will, but it is when that influence becomes “undue” that a Will may be challenged.
In order to show undue influence it must be shown:
• Person A had influence over, or the ability to influence, person B; and
• Person A used that influence unduly.
In some circumstances certain types of influence could be regarded as Fraud or Forged Wills.
Lack of Knowledge and Approval of the Terms of the Will:
If a person making a Will did not understand the terms of the Will, the Will may not be valid.
You may contest a Will if the person making the Will did not understand the terms of the Will.
This is often encountered where a Will is being made in a language which is not the first language of the person making the Will, if the person making the Will was blind, deaf or illiterate, or if a mistake was made in the preparation of the Will.
In some circumstances this could be due to a Lack of Mental Capacity.
Will Not Properly Executed:
A Will may be invalid if it has not been properly signed and witnessed.
A will is an official legal document, and in order to be valid, it must comply with certain rules which are set out in the Wills Act 1837.
In order to be valid, a Will must be:
• In writing. This can be any form of writing on any material.
• Signed by the person making the Will, or at his or her instruction.
• In the presence of two witnesses who sign in the presence of the person making the Will.
• A witness must actually see the signature.
• A witness or their spouse cannot be a beneficiary of the Will (unless there are three or more witnesses). If this happens, then the specific gift fails.
Fraud and Forged Wills:
A Will is invalid if it is forged or was made as a result of fraud.
Fraud involves manipulation or deception of individuals.
Fraud can involve “fraudulent calumny” of a person who would otherwise be likely to be included as a beneficiary of a Will. Fraudulent calumny is where a person lies about another and poisons the mind of the person making the Will.
On the basis of those lies, the person changes their Will.
There are many examples of cases involving fraudulent calumny, and each case is often very different.
A Will is obviously not valid if it is forged. One example of forgery is the well-publicised case of a West Midlands woman, Joyce Sutton, who decided her home was haunted by the ghost of her husband’s first wife, and called on a clairvoyant, Paul Williams, to help her. When, some-time later, her husband himself died, Mr Williams claimed that he had made contact with the deceased husband and that Mr Sutton’s ghost had directed him to look for a will in the grandfather clock in the hall.
A Will was duly found – dividing the estate between the widow and the clairvoyant. It was, of course, a forgery, and as the judge remarked on sentencing the clairvoyant: “I am sure you have foreseen that you are going to prison, and you do not need to be a clairvoyant to see that”.
Obtaining Information About the Drafting of a Will
Where a solicitor has prepared a Will and that Will is disputed, there are various ways to obtain further information.
Often the information needed to properly understand the circumstances surrounding the drafting of a Will may be in the hands or memory of the solicitor who drafted the Will.