When a person dies, family and friends want to know how that person’s estate will be divided up. But what if these loved ones aren’t happy with the will’s terms? Or the circumstances surrounding its creation? This post answers the question ‘can a will be contested?’
Yes, you can contest a will. For the claim to have any chance of success, however, you must be an eligible person. Which, in most cases, requires that you’re a child of the deceased (otherwise known as ‘the testator’). Alternatively, you can be a cohabitee, spouse, or a person named in the will or any earlier ones drawn up.
So, let’s say you’re an eligible person. To contest a will successfully, you must also have legal valid grounds. These are as follows:
Can you prove the documents are the subject of forgery? The terms of the will concern the testator. In cases of fraud, it’s common to see a will created by an agent who writes false terms for their own benefit. Prove this, and you have a case to take to court.
Lack of due execution
For a will to be legally binding, the testator must sign in the presence of two independent witnesses. Independent witnesses are basically competent and individual adults who need to sign with their names and addresses. These details are supplied should there be any problems. Any hint of irregularity with this transaction, however, means the will can be contested.
Lack of testator capacity
Can you prove the testator wasn’t in sound mind when they made the will? Were they under the influence of drugs or alcohol at the time? Or experiencing mental instability? If you can make a reasonable case for this, the courts can overturn the will.
It’s rare when it happens. But sometimes a testator creates a will under pressure or manipulation. If this is the case, you can claim the will has been prepared under undue influence. That said, the quality of supporting evidence must be high to have any chance of success.
If you do have cause to contest a will, it’s important to seek legal advice as soon as possible. There are time limits which you need to be aware of. That said, 50% of cases settle before proceedings start whilst only 2% of cases reach a final trial.
Alternatively, if the will is valid, but you feel unfairly treated or provided for, don’t lose hope. It’s still possible to claim financial provision under the Inheritance Act 1975. Either way, if you have any concerns or questions, please give me a call on 0116 250 5747 for a free discussion.