Challenging a Will

Writing a Will is an essential part of Estate Planning, ensuring that your assets are distributed according to your wishes after you’re gone. However, there may be circumstances where individuals believe the Will doesn’t accurately reflect the deceased person’s intentions or may have been influenced inappropriately.

In the UK, contesting a Will is a legal process that allows interested parties to challenge its validity. In this article, we’ll explore the grounds for challenging a Will and the steps involved in the process.

Grounds for Challenging a Will

Challenging a Will is not a simple task, and there are specific legal grounds that must be met for a challenge to be considered valid in the eyes of the law. These grounds include:

• Lack of Testamentary Capacity: A person must be of sound mind when creating a Will. If it is believed that the individual lacked the mental capacity to understand the consequences of their actions at the time of creating the Will, the document may be contested.
• Undue Influence: If there is evidence to suggest that the deceased was unduly influenced by another person when making the Will, the document may be challenged. This influence could be in the form of coercion or manipulation, leading the deceased to make decisions against their true intentions at the time of writing their Will.
• Fraud or Forgery: If there is reason to suspect that the Will is fraudulent or has been forged, it can be challenged. This may include situations where someone else signs the Will on behalf of the deceased or where the deceased’s signature is forged.
• Lack of Knowledge and Approval: The person making the Will must have knowledge and approval of its contents. If it is believed that the deceased was unaware of or did not approve of the contents of the Will, a challenge may be valid.
• Failure to Execute the Will Properly: To be legally valid, a Will must be executed in accordance with the Wills Act 1837. If there are issues with the formalities of how the Will was signed and witnessed, it may be challenged. For more information, read our article ‘What Makes a Will Invalid’.

Steps to Challenging a Will

If you believe there are grounds to challenge a Will, it’s crucial to follow the appropriate legal procedures. The process typically involves the following steps:

• Seek Legal Advice: Before taking any action, it’s advisable to consult with a legal professional who specialises in Wills and Probate. They can assess the circumstances and advise on the likelihood of a successful challenge.
• Issue a Caveat: A caveat is a formal notice that prevents Probate from being granted until the challenge is resolved. This buys time for the challenging party to gather evidence and present their case.
• Gather Evidence: To support a challenge, it’s essential to gather evidence that substantiates the grounds on which the Will is being contested. This may include medical records, witness statements, or any relevant documents.
• Mediation and Settlement: In some cases, mediation may be recommended to resolve disputes without going to court. If an agreement is reached, the challenge may be withdrawn.
• Court Proceedings: If a resolution cannot be reached through mediation, the matter may proceed to court. The court will carefully consider the evidence presented by both parties before making a decision.

Minimising the Chances of Will Contestation

While it’s important to understand the grounds for challenging a Will, taking proactive steps to minimise the likelihood of your Will being contested can provide peace of mind for you and your loved ones. Here are some practical measures to consider:

• Consult with a Professional: Seek advice from a qualified professional when drafting your Will. They can ensure that the document adheres to legal formalities, reducing the risk of challenges based on technicalities.
• Ensure Testamentary Capacity: When creating your Will, ensure you are of sound mind and fully understand the implications of your decisions. Consider obtaining a medical professional’s opinion to confirm your mental capacity at the time of drafting.
• Document the Decision-Making Process: Keep records or notes that detail your thought process when making decisions about your Will. This can serve as evidence that your choices were deliberate and not influenced by external factors.
• Choose Witnesses Carefully: Selecting appropriate witnesses when signing your Will is essential for ensuring the document’s validity. This careful choice, based on impartiality, credibility, and adherence to legal requirements, helps prevent challenges and safeguards against potential contestation.
• Discuss Your Intentions: Openly communicate your wishes with your family and Beneficiaries. While it’s not a legal requirement, discussing your intentions can help prevent surprises and potential disputes in the future.
• Update Your Will Regularly: Life circumstances change, and your Will should reflect these changes. Regularly review and update your Will to ensure it accurately represents your current wishes, reducing the likelihood of successful challenges based on outdated information.
• Include a No-Contest Clause: Some Wills include a no-contest clause, stating that if a Beneficiary challenges the Will and loses, they may forfeit their inheritance. While not foolproof, this can act as a deterrent.
• Store Your Will Securely: Choose a safe location, inform your Executors of its whereabouts, and consider using professional storage services to protect against complications due to loss or damage.

By taking these precautionary measures, you can significantly reduce the chances of your will being successfully contested. Consulting with legal professionals throughout the process ensures that your wishes are not only clearly documented but also legally sound, providing you and your loved ones with peace of mind.

Challenging a Will

Understanding the potential challenges to a Will in the UK is essential for effective Estate Planning. The legal grounds for contesting a Will, including lack of capacity, undue influence, fraud, lack of knowledge and approval, and improper execution, underscore the importance of careful consideration during the drafting process.

Navigating the process of challenging a Will involves seeking legal advice, issuing a caveat, gathering evidence, and, if necessary, resorting to court proceedings. These steps are crucial to ensuring a fair resolution that respects the intentions of the deceased.

To minimise the risk of Will contestation, proactive measures such as consulting with professionals, ensuring testamentary capacity, and maintaining proper documentation can significantly contribute to a smoother estate transition.

In conclusion, a thoughtful and proactive approach to Estate Planning not only safeguards your wishes but also provides peace of mind for both you and your loved ones, ensuring that your legacy is preserved according to your true intentions.

Useful Links

To begin the process of contesting a Will, you can fill out the following form: ‘Form N2: Contest a Will‘.

For more information on responding to a challenge against your Probate application, you can find more information on the government website: ‘Stopping a Probate Application‘.

Contact Us

If you want to find out if your potential claim has any merit, we’ve partnered with IDR Law to provide their free claim checker. Within a matter of minutes, you’ll know what your options are for challenging a Will. Try out the free claim checker here.

For personalised guidance and a thorough exploration of your specific circumstances, we invite you to contact us at 0117 952 0698 or simply click Contact Us.