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Contested Probate - How and why Wills can be contested

Distributing the estate of a deceased person is a challenge that often results in legal wrangles between family and friends, especially if they feel that they haven’t been included in the will or have been ‘short changed’ in some way. This can lead to family arguments and even a challenge to the will itself. But under what conditions can a will be challenged and how do you go about doing so? Here, we take a brief look at situations where a will might be challenged.

Five principal justifications for challenging a will

Invalid will

To be valid, a will must be written and then signed in the presence of two witnesses, neither of whom can be beneficiaries of the will. If there is evidence to suggest that any of these conditions have not been met, it will be possible to contest the will.

Lack of capacity

A will can only be legitimately made by an individual who understands the significance of the act and the consequences to their estate of doing so. This means they understand how the estate will be broken up and who will benefit after they have died. It ensures that a will was made by an individual who was in a competent mental state, and if there is any doubt over that fact, it can be challenged.

In recent years, it has become one of the most common justifications for contesting a will, largely due to the increasing number of dementia diagnoses among the elderly.

Undue influence

Undue influence may rise when someone has put pressure on the person writing the will to include clauses or bequests that they would not have included if they were writing the will free of any outside influence. As well as being mentally competent, the will-maker needs to make decisions by themselves and without any coercion. If someone else – whether they are a beneficiary of the will or not – tries to pressurise the will-maker to change the contents of a will, it can be justifiably challenged.

Financial maintenance

This is probably the biggest single factor for wills being challenged. If an individual was financially dependent on the deceased when they died (for example, a child or spouse) then it may be possible for them to challenge the will if they think that the will doesn’t make ‘adequate provision’ for them. To do so they must meet the following two conditions:

  • The claim must be made within six months of the Grant of Probate being issued
  • The claimant must meet the criteria for a claimant: this includes a spouse or civil partner, a former spouse or civil partner who has not remarried, a co-habitant who had lived in the deceased’s house for two years prior to their death, offspring, and any other individual who was financially maintained by the deceased before their death.

Fraudulent wills

A will can be challenged because of doubts over the legitimacy of the will or a signature. If the will itself or a signature may have been forged, it is open to the challenge.

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Private Client eBrief 12 July 2019