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What Are The Top Five Reasons For Contesting A Will?

Posted: Monday, 2 December 2019 @ 15:36

For those of us presented with a situation in which a loved one has died and the will has emerged but that inheritance is not as it should be for you what are your options?

Do you accept the position or can you challenge it?

And dealing with actually contesting the will what is the best way to approach this?

Before we answer this question the best way to answer that question is to in fact reverse the question and ask what does it take to make a will valid. 

For a will to be valid you refer to the law which says that a will must be: in writing, signed by the testator and the testator must intend when signing the will for it to be valid and the testator’s signature must be acknowledged in the presence of at least two witnesses.

Process is Panacea  

Wills are process driven and fundamentally If the will has been properly executed, the presumption is that it is valid, unless one of the concerns set out below arises.

Now that we have that out of the way this then leads us to upon what grounds can I contest a Will?

For our purposes there are five ways to contest the validity of a will and in order to see if one will be successsful  challenging the will you need to identify which one is the best ground and then establish the evidence in support.

The grounds to challenge are: lack of testamentary capacity;  lack of valid execution; lack of knowledge and approval; undue influence and forgery.

Irrespective of which ever ground you are looking at you need to look at the evidence as a whole and any competent lawyer will be asking some searching questions including ·       

  • Was the will changed prior to the last one? ·        
  • Did the deceased have professional advice in preparing the will? 
  • Is there anything unusual about the circumstances of the will being done? ·        
  • Did anyone new on the scene benefit from the latter will? 
  • What was the deceased’s medical condition at the time of preparing the will?

Dealing with these grounds in turn:

Lack of Testamentary Capacity 

For a person to make a valid will they must be of sound mind. The legal test says that, for a will to be valid, a person must: understand that they are making a will and the effect of that will; know the nature and value of their estate; understand the consequences of including and excluding certain people under their will; and, not be suffering from any ‘disorder of mind’ which may influence their views.

Lack of Valid Execution

In a claim for lack of valid execution, also known as ‘lack of due execution’, a will is invalid if it fails to meet one or more of the following requirements (as set out in s.9 Wills Act 1837): The legal presumption is that a will has been validly executed unless there is evidence to the contrary such as doubts over any of the above factors. There are also strict rules about who can and cannot witness a will.

Lack of Knowledge And Approval. 

Where a will has been executed correctly (i.e. the testator has signed the will in the presence of two witnesses who have also signed the will) and the testator had the necessary testamentary capacity, knowledge and approval will be presumed. However, there are certain circumstances, where doubt has been raised where it must be proved that the testator had the necessary knowledge to understand the content of their will and that they approved the content.

Undue Influence

To prove that a person was unduly influenced, coerced or under duress when making a will you must show 'actual undue influence'.The evidence needed to prove undue influence must be of a high standard, to the extent that there is no other reasonable theory to explain the terms of the will. This is easier said than done.


You are able to contest a will if you believe it was forged or fraud has taken place. This is a serious allegation and has a high standard of legal proof. You will need handwriting expertise to back this up.

Are There Time Limits?

Most claims against personal estate of a deceased person may be brought up until the expiration of 12 years from the date of death. However, this is not always the case, and there are exceptions.

Do You Need A Solicitor?

However, each case is unique, and advisors should obtain a good grasp of the character of the deceased, the nature of family relations, any testamentary intentions of the deceased (as expressed to friends, family or third parties) and to consider this against the contemporaneous evidence available. An informed decision can then be made whether to contest a will and if so, on what basis.

Be Careful What You Wish For

Success is Not Everything But it’s not a decision to be taken lightly. It’s imperative 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. Here are the requirements of a valid will, and a summary of the main ways in which a will may be challenged.