In recent years there has been a significant increase in legal claims issued by disappointed beneficiaries, seeking to challenge the validity of a family member’s Will after they have died (this area of law is known as ‘Contentious Probate’).
These challenges often come about because someone has been left out of a Will or not received the inheritance they were expecting.
It may be the case that the Will was made in circumstances where the Testator was suffering from a mental illness or was subject to control or influence by a third party.
In these circumstances it is possible to seek to have the Will set aside and a previous Will admitted to Probate (if one exists, failing which the estate will be administered on the basis that the Deceased died intestate).
Here’s what you need to know about contesting a Will.
On what grounds might a Will be contested?
A Will can be contested on a number of grounds, including:
- Lack of capacity: This is when the person making the Will (testator) isn’t able to understand the implications of the Will due to an impairment or disturbance of the mind (for example due to dementia).
- Lack of formalities: If a Will has not been signed by witnesses or in the presence of witnesses, it may be invalid.
- Lack of knowledge and approval: If the testator is believed to have been unaware of (or not understood) the content of the Will, this could be grounds for contesting the Will.
- Undue influence: This refers to malign influence on the testator to the extent that they were not acting of their own free will or were afraid of acting on the contrary.
- Fraudulent Calumny: When a person has made false misrepresentations to a testator which “poisons their mind” against another so that they are excluded from the Will.
One of the most serious grounds on which a Will might be contested is forgery.
Forgery
A forged Will might be one that has knowingly not been created according to the legal procedure, or an earlier Will that is put forward after the latest version has been hidden or destroyed.
In rarer cases, a Will may even have been forged completely in a way that vastly differs from the deceased’s wishes.
It can be difficulty to identify if a Will has been forged.
However, some tell-tale signs include:
- Out-of-character terms.
- A signature that is markedly different from the deceased’s usual handwriting.
- The Will being found unexpectedly by someone who stands to benefit.
If you think someone has forged a Will, it is vital to speak to a solicitor as soon as possible.
How to contest a Will
If you believe that a loved one’s Will is not an accurate reflection of their wishes, you may wish to challenge the Will.
It is recommended that you do this through an experienced solicitor, who can assess your position and identify the most suitable grounds for your claim.
A solicitor will also advise on gathering evidence to support your claim and challenging presumptions usually made by other parties, such as whether the testator had capacity to make their Will.
Although there is no statutory time limit for challenging the validity of a testator’s Will, it is important to act swiftly to avoid the estate being administered and assets being disposed of before you can contest.
Contentious Probate services with Palmers Solicitors
At Palmers, we understand that losing a loved one is an extremely difficult time. We also understand that this can be exacerbated if you feel the need to dispute the Will.
We know that Contentious Probate matters are of high emotional, financial, and sentimental importance to people, particularly where there are competing views as to the Deceased’s wishes and where high-value inheritances are at stake.
Our expert team has extensive experience in all aspects of contentious probate and can ensure that you receive clear, decisive advice.
We also offer mediation services to help you resolve disputes in a more timely, cost-effective and amicable manner.
Our expert contentious probate team include ACTAPS accredited members, meaning they possess a high level of expertise and experience in dealing with contentious trusts and probate disputes.
If you believe that a relative’s Will may be invalid, it is essential to seek legal advice as soon as possible. Contact us today for more information.