What are the Grounds for Contesting a Will?

Enquiries are rising about whether family members and loved ones can challenge Wills. In this blog, our Contesting a Will solicitors look at the grounds for contesting a Will.​

Call Evolve Family Law for advice on challenging a Will or complete our online enquiry form.

​Can I contest a Will?

The grief and distress experienced at a time of bereavement is increased if you don’t think that your loved one’s Will is correct or fair. It is best to take legal advice on the Will and whether you have the grounds to contest the Will. Our team of specialist lawyers provide discreet, sensitive advice about your options.

What are the grounds for contesting a Will?

You may be able to contest a Will if:

1. The Will maker lacked testamentary capacity, or
2. The Will was not executed properly, or
3. The Will maker was unduly influenced to make the Will, or
4. The Will was fraudulent or forged.

In addition, if you have not been named as a beneficiary in a Will or if you haven’t been left as much as you need and you were dependent on the deceased, you may be able to bring a claim against the estate. This is different to challenging a Will on one of the four grounds.

Contesting a Will because of a lack of testamentary capacity

A Will is not valid if the Will maker signed their Will at a time when they had lost their mental capacity to manage their own affairs (referred to as a lack of testamentary capacity by contesting a Will lawyers). That’s because a Will maker must have testamentary capacity to make or change a Will.

Loss of mental or testamentary capacity means that the Will maker didn’t have the mental ability to understand what they were doing when they signed their Will and the impact that their actions would have on their estate.

If the person signing the Will did not have mental capacity at the time it was executed, and if the Will is successfully challenged, the estate will pass and be administered in accordance with either:

1. The deceased’s most recent valid Will, or
2. If the deceased did not make an earlier Will, their estate will be distributed under the intestacy rules. It is therefore important to understand what would happen to the deceased’s estate if a Will is challenged, as intestacy rules can produce unexpected results.

Contesting a Will because the Will wasn’t executed properly

A Will may not have been executed properly as it wasn’t signed by the Will maker or their signature wasn’t properly witnessed by two witnesses. If the Will wasn’t executed properly, then the Will is invalid. This means the deceased’s estate will pass in accordance with any earlier validly executed Will or, if there is no earlier valid Will, under intestacy rules.

Contesting the Will because the Will maker was unduly influenced to make the Will

If the Will maker was under undue influence or was pressured or coerced into making a Will, the Will may be invalid. There may be a red flag over whether there was undue influence if the deceased was elderly or vulnerable and left their estate to someone they had only met shortly before their death, and the deceased had always stated that they would leave their estate to family members or friends.

Any challenge to a Will based on undue influence has to carefully look at what evidence there is of undue influence, other than suspicion on the family member’s part. This is because to contest a Will based on undue influence, the applicant must be able to show that the deceased would not have made the legacy in the Will without being subject to coercion or undue influence.

Contesting a Will because the Will was fraudulent or forged

If a Will is fraudulent or forged, then it is invalid. Examples of forged Wills include:

1. Forging the Will maker’s signature to make sure the Will is executed, or
2. Destroying a Will so that an earlier Will is thought to be the valid Will, or because, under intestacy rules, the fraudulent person will get the lion’s share of the estate.

Should I contest a Will?

If you want to contest a Will because you have concerns about its validity, then it is best to take legal advice. A contesting a Will solicitor can assess:

1. The grounds for challenging the Will
2. The evidence
3. The size of the estate
4. Your prospects of reaching a compromise or securing a court order

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How do you contest a Will?

If you want to contest a Will, it is essential to act and obtain legal advice as soon as you can. That’s because there are time limits to contest a Will. For example, if you are bringing a claim as a dependant of the deceased, the time limit is six months from the issue of the grant of probate.

If you decide to contest a Will, then you can make a claim, referred to as a ‘caveat’, to the Probate Registry office. The claim means the probate won’t be completed, and therefore the estate won’t be distributed without your being notified and able to pursue the claim. The caveat lasts for six months but can be renewed if an extension is justifiable.

If, during the period of the caveat, you cannot resolve the Will dispute by agreement, then you have the option of starting court proceedings to contest the Will. When determining the application, the court will weigh up all the evidence. That’s why it is best to seek specialist legal advice before commencing court litigation. That way, you can make informed choices on whether pursuing the court case is in your best interests.

Our Private Client and Contesting a Will Solicitors

Deciding whether to challenge a Will isn’t an easy decision to make. For sensitive, pragmatic help, call Chris Strogen at Evolve Family Law or complete our online enquiry form.