Contesting A Will

Not everyone has the legal right to challenge a will. They must have a connection to the deceased as defined in law.

Under Section 1 of the Inheritance (Provision for Family and Dependants) Act 1975, claimants can include the wife or husband of the deceased – and also any former wives or husbands (provided that they have not remarried).

Former wives or husbands who have not remarried but have been in long-term relationships still have a valid claim – but the amount they can receive is at the discretion of the court. 

The court will take into account their circumstances so they may live at “neither a luxurious, nor poverty-stricken level.”

Couples who are separated or getting divorcing (but are still legally married) can still contest a will even though their relationship has broken down. Until the granting of a Decree Absolute, the husband or wife is entitled to contest a will. The Decree Absolute is the point at which the marriage is legally dissolved.

People who have not married but have lived with the testator (the person who made the will) in long-term relationships can also claim.

They must have lived together in the same household as if they were husband and wife – for at least two years before the deceased died. Also, the deceased must have died on or after January 1 1996.

People who were in a long term relationship but did not live together under the same roof may still qualify as claimants. However, it depends on factors such as whether they spent significant time at each other’s properties.

In the case of long-term unmarried couples who are in the process of splitting up, the law is less clear. However, a person may be able to claim if they relied on the deceased for maintenance or were dependant on them.

Any child of the person who made the will is eligible to contest it. Also eligible is any person who “at any time…was treated by the deceased as a child of the family in relation to that marriage”.

This could include stepchildren, adopted children and wards of the deceased if they “at any time stood in the role of parent” to the claimant.

It is important to note that the will relates to the current marriage of the deceased. All previous wills become null and void when the deceased remarries.

What happens if the testator has married a number of times and subsequently spurned stepchildren from previous marriages? If the stepchildren were not treated as children at the time of the final marriage, they are unlikely to have any claim on the estate, unless they were being maintained by the deceased.

To reflect changes in modern life, the Inheritance & Trustees’ Powers Act 2014 (which came into force on October 1 2014) allows claims by children and stepchildren from relationships where the deceased was not married or in a civil partnership.

What matters in the eyes of the law is the nature of the relationship between the deceased and the claimant – not whether the deceased was married or not.

The Inheritance (Provision for Family and Dependants) Act 1975 also makes provision for legal challenges to wills by anyone who "was being maintained, either wholly or partly, by the deceased".

This would usually require that the deceased must have been making “a substantial contribution in money or money’s worth towards the reasonable needs of that person”.

But how does the law define ‘partly’? How slender a link to the deceased does a claimant have to have for them to be eligible to dispute a will? That is for the court to decide, depending on the facts of each case (unless the matter can be settled out of court).

Brothers, sisters, parents, grandparents, nephews, nieces, cousins and long-standing friends do not generally qualify as being able to contest a will – unless they were:

• maintained by the deceased
• dependant on the deceased
• treated as if they were a child of the deceased.

There are six main grounds for disputing a will:

• mental capacity
• undue influence
• lack of knowledge and approval
• execution
• construction and rectification claims
• forgery.

Was the person who made the will (the ‘testator’) fully capable of making decisions?

This is one of the most common ways of challenging a will. Perhaps the testator revised their will in their later years, when their mental faculties were not as sharp as they were when they were younger.

The testator may have been suffering from the effects of dementia when they changed their last will and testament. The will could be declared invalid if it can be proved that they lacked capacity.

The case law that defines mental capacity for the purposes of making a will is Banks v Goodfellow (1870). It stipulates that the testator must:

• be aware of the nature of their actions – they must understand that they are making a will
• know the full extent of the property they are bequeathing
• understand and appreciate that claims may be made as a result of the contents of their will.

It is important to note that the Banks v Goodfellow definition differs from the Mental Capacity Act 2005 definition used by the Court of Protection in cases involving matters such as powers of attorney and deputyships.

It is usual for disputes concerning lack of mental capacity to require the involvement of a medical practitioner.

But the court will also consider non-medical evidence such as relationships with family and friends and the contents of previous wills.

This is also one of the more typical reasons for disputing a will. The concern is that someone has forced or tricked the testator into changing their will.

It can also be used as a challenge when it is felt that a person has been overly persuasive and exerted excessive influence over the testator when they were drafting their will.

Cases of undue influence can involve second or subsequent marriages – particularly if there is a significant age gap or the new spouse married the testator shortly before their death.

Undue influence cases can also involve distant relatives or past friends who suddenly re-enter the life of the testator at a financially ‘convenient’ time.

Paid or volunteer carers who receive a large bequest despite knowing the testator only a short time can also be viewed with suspicion by family members who had been expecting to inherit.

Claims based on undue influence require a high burden of proof – to the extent that there could be no other reasonable explanation for a testator’s decision to change their will suddenly.

A will must be made with the full knowledge and approval of the testator if it is to be valid.

Wills that do not fulfil these criteria may be open to challenge. Perhaps someone has drafted the will on behalf of the testator and tricked them into signing it without their full understanding of the ramifications.

Suspicions will be significantly higher if the person who drew up the will for the testator also happens to receive a large bequest in it.

Challenges of this type may be easier to prove than those relating to mental capacity or undue influence.

A will is not valid if it is not executed correctly. Disputes can often arise from home-made wills in particular.

Also, the increased use of cheap internet wills or unregulated will writing companies has led to an increase in these types of claims.

According to Section 9 of the Wills Act 1837, a will must be in writing and signed by the testator with the intention of making it legally binding.

Two witnesses – both present at the same time – must also sign the will or attest to its validity.

If the testator is unable to write, someone else can sign the will on their behalf but only in their presence and only if directed by them.

Disputes relating to the execution of a will often centre on the witnesses. It is crucially important that both witnesses were there at the time the testator signed the will.

A will can be declared invalid if it can be proved that one or both witnesses could not possibly have been there and in reality either signed it later or ahead of the testator.

A will can be contested if it misrepresents the testator’s wishes because it has been drafted negligently.

Clerical errors are one possible reason but this type of claim can also cover wills which have been worded so badly that the terms of the bequests are unclear.

Section 20 of the Administration of Justice Act 1982 is the key legislation for will rectification claims

Forgery of wills is extremely rare but that does not mean it does not take place. Vigilance is vital to prevent cases from going undetected.

In a case that went before Worcester Crown Court in February 2015, a woman and her ex-husband received suspended prison sentences after they both pleaded guilty to forging her partner’s will.

The family of the deceased became suspicious after some of his possessions were advertised for sale on eBay.

Breaches of trust can involve instances where a trustee does something that is not authorised by the trust document, the will or by the law governing trusts.

Or perhaps a trustee has negligently or carelessly done something (or failed to do something) which adversely affects the trust’s assets or the beneficiaries.

In some cases the trustee does something which amounts to them advancing their own interests above the interests of the trust beneficiaries. This is generally known as ‘self-dealing’.

Lifetime gifts can cause problems. What if the deceased recipient’s family refuses to hand back the gift in question?

What if they say that the gift should remain with them? What if they didn’t know that the gift was only for the lifetime of the recipient? What if they were never told?

Disputes regarding lifetime gifts can affect how the assets are to be distributed – and also the tax implications for the estate.

Sometimes people will appoint more than one person to act as joint executors to administer their estate. This can lead to disputes between executors on how the deceased’s estate should be distributed or managed.

You may feel that the executor appointed to manage a loved one’s estate is not acting in a fair and proper manner.

Or if you are an executor and would like advice or guidance on how to protect yourself from claims brought by beneficiaries, we can assist.

These claims can occur for a variety of reasons and against a variety of advisors. A solicitor or other professional (including non-qualified will writers) must ensure an estate is administered in accordance with the law.

They must ensure that a will is validly signed and witnessed, and is free from any errors that would invalidate the will. If they fail to do so then the executors are entitled to bring a claim for professional negligence for financial loss suffered as a result.

Such claims can also be brought against professional or corporate trustees for failure to administer a trust properly.

People will sometimes take out powers of attorney at the same time as making a will. Indeed, we would always recommend taking a holistic look at all the solutions available to you.

Enduring Powers of Attorney (EPA) and Lasting Powers of Attorney (LPA) – which replaced EPAs in 2007 – must be registered with the Court of Protection for them to become valid.

EPAs in particular were often not formally registered. This made them vulnerable to abuse or fraud. If you believe an EPA has not been registered and is being misused, we can provide advice.

Also, if you believe that a power of attorney has been signed in inappropriate circumstances (under duress for example) or if you wish to challenge an attorney on specific actions that they have taken, please contact your nearest Coles Miller office.