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Contesting a will
There are many reasons why an individual might want to contest a will. If you feel you have been unfairly excluded from a will, or that a person’s will may have been forged, there are options you can explore.
WHO CAN CONTEST A WILL?
In some cases, when an individual writes a will they may decide to leave someone out purposely. However, sometimes the individual writing the will may inadvertently miss someone who would usually be expected to be included. If the individual who has been left out feels they are entitled to the deceased’s estate, or they were financially dependent on the deceased, they may choose to seek a lawyer to challenge the validity of the will.
You can’t simply challenge someone’s will on a whim. The Inheritance Act states that only people who fall under the following areas can contest a will:
- Blood relatives
- Spouses, including those who are separated but not divorced
- Beneficiaries who were named in any previous will written
- Any individual who was financially dependent on the deceased
- Anyone to whom the deceased owed money
You should know…
Under normal circumstances it can be extremely difficult (but not impossible) to challenge a person’s will. Unsurprisingly, this is because when it comes to executing the will, the person who wrote the will is no longer around to answer questions.
Even if you have a reason for contesting a will, much will rely on the strength and volume of evidence in your favour. Without this, it’s unlikely any claim would succeed.
The grounds for contesting a will
Forgery and Fraud
Contesting on grounds of forgery and fraud requires proof that the will was not signed, or even written by the individual whose name is on the will.
However, forgery can also emerge if a witness was not present at the time of the making of the will, yet the will has their signature on it.
Contesting on the grounds of forgery requires evidence that is credible and can often involve sourcing a handwriting expert to evaluate if the signature on the will was forged; otherwise, it may be dismissed in court.
Insufficient Testamentary Capacity
Deciding if a person has the mental capacity to determine what is included in a will, or if they fully understand the contents contained is referred to as testamentary capacity in legal jargon.
An individual must have testamentary capacity when writing a will, otherwise it is considered invalid. To ensure a will is not invalidated, it is essential the individual can prove that they:
- Understand why they are making a will what a will includes
- Understand exactly what the assets are that they are leaving behind
- Know exactly to whom they are giving their assets
- Are not suffering from any neurological condition such as dementia that may affect their judgement
Irregularity Under the Will's Act 1837
Section 9 of the Wills Act 1837 states that a will is not valid unless it is in writing and has been signed in a particular manner.
This includes the will-maker signing at the bottom of the will in the presence of two witnesses, and vice versa.
If you can prove that the provisions stated in section 9 were met, this would prove that the will is valid.
However, to contest a will on these grounds, any claims must be supported by hard evidence and brought to the court.
Lack of Knowledge and Approval
The individual creating the will must understand the contents and approve their own will. This is especially important if they are asking someone else to write their will for them, and even more so if the person writing their will is also to be named a beneficiary of that very will.
This is because the will-maker may have added alterations that were not originally intended, intentionally or otherwise. The court may ask for additional information in certain circumstances where the person leaving the will:
- Was blind or illiterate
- Could not speak, write or was in poor health (such as being paralysed or comatose)
- Was dumb or deaf
- Had their will written by someone else
If there are suspicions that the person making a will was forced either to alter the will, or to sign a will that was written for them against their will, there may be grounds to contest under undue coercion.
As with all other grounds, there must be a high quality of evidence to prove this.
Time Limits on Contesting Wills
If you are considering contesting a will, you should act quickly. If you act too slowly, your claim may be rejected on grounds that it is simply too late.
If your claim falls outside of the following time limits, it’s unlikely to be accepted:
- For challenges made under the Inheritance Act (mainly failure of the testator to make financial provisions for a beneficiary), claims must be started within 6 months from the grant of probate
- For beneficiaries challenging the will, claims must be brought within 12 years from the date of death
- For claims of fraud, there is no time limit
How Can a Lawyer Help to Contest a Will?
Contesting a will is notoriously difficult even with the proper help. Unless you bring a claim under the right grounds, your challenge may be rejected at the very start.
If you start an improper challenge that ultimately fails, it is likely to incur heavy costs not just for you, but also the estate of the person who passed away. Sometimes this can drain the estate entirely, leaving nothing to distribute. If the estate is small to begin with, it may not make financial sense to challenge the will.
Even if you have a valid grounds on which to start a challenge, you must also have proof of why your challenge holds any truth. Many claims will either stall or fail on this point as the evidence is simply not compelling enough to overturn the will. A lawyer will help you evaluate all these points and ultimately advise whether your challenge has any chance of success.
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