Challenging a will is technically complex and requires specialist legal knowledge. Litigation expert John Colvin examines some of the issues.
Contesting a will can be emotionally and financially draining, so it’s essential to be sure of your position before taking this significant step.
There are a number of grounds for contesting a will, notably absence of testamentary capacity, lack of valid execution, lack of knowledge and approval, and undue influence.
Lack of mental capacity
A recent High Court ruling examined the question of mental capacity involving the estate of a former nurse, Beryl Parsonage.
Mrs Parsonage had divided her estate equally between her three children in a will written in 2011, before she died in 2015, aged 86. This superseded an earlier will drafted in 2010, in which she had left her son Duncan more than his siblings as a result of gifts they had received during her lifetime.
The latest will was created because Mrs Parsonage believed that the earlier will did not achieve her aim of treating her children equally. She didn’t know when making her 2010 will that her property was worth more than thought, so made a fresh will in 2011 to ensure her estate was divided equally between her children. Her son Duncan would have been left with significantly more than his siblings under the 2010 will.
Duncan Parsonage contested the most recent will on the basis that his mother was incapacitated by dementia when she made it. However, the High Court ruled that Mrs Parsonage’s dementia symptoms had not impaired her capacity to create the fresh will and carry out her wishes.
Four rules of mental capacity
There are four requirements relating to mental capacity that must be met when a will is made. These are:
- Understanding the nature and effect of the will
- Being aware of the extent of the property or estate
- Knowing precisely who has been included and excluded from benefiting under the will and the reasons why
- Not being affected by a mental condition that leads the individual to make decisions they would not otherwise have made
The use of undue influence or duress
Another ground for contesting a will is proving that a person was unduly influenced, coerced or under duress when they made the will.
The standard of evidence needed to prove undue influence is high and in the absence of direct evidence, you’d have to demonstrate suspicious circumstances to prove the will wouldn’t have been made in the usual course of events.
Lack of valid execution
A claim for lack of valid execution means a will can be contested if it doesn’t satisfy one or more of the following requirements under the Wills Act:
- It needs to be in writing and signed by the person making it, or someone authorised by that person
- It must be clear that the person creating the will intended to make the will effective by making their signature
- The relevant signature must be made, or acknowledged, in the presence of at least two witnesses, present at the same time
- Each witness must either attest and sign the will, or acknowledge the signature in the presence of the person making it
Lack of knowledge and approval
For a will to be valid, the person making it must know and approve of its contents in full. It is possible to challenge a will on this ground, even if it seems validly executed and there are no issues of mental capacity.
This ground for challenge typically covers scenarios such as:
- Where the will made is not in the first language of the person making the will
- The person making the will was blind, deaf or illiterate
- A mistake was made in the preparation of the will and the testator was operating under a mistaken belief
Avoiding a contested will by using professional advice
The most effective way to avoid a contested will is to take expert advice from a specialist solicitor who will ensure all legal requirements are comprehensively satisfied.
For further advice on contesting a will, call John Colvin on 0161 761 4611 or email him at firstname.lastname@example.org