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Civil Litigation | Contesting a Will

The death of a loved one can be a traumatic and emotional experience and can be made more difficult when issues over the division of the deceased’s estate arise. There are many reasons why a party may challenge a will and this practice is known as “contesting a will”.

Contesting a will can be an exhausting process, both emotionally and financially, and the best way to avoid such a situation is to ensure that your will is properly and professionally drawn up. At The Sethi Partnership Solicitors we pride ourselves on drafting bespoke, legally watertight wills, which we execute with compassion and efficiency.

Who can Contest a Will?

To challenge a will one must either be a named beneficiary of the will or stand to inherit from the testator (the person whom the will is written for), if the will is indeed invalid.

When can a Will be Contested?

One important factor to take into account is that one can only contest a will when challenging or objecting to the validity of the will itself, not because they are unhappy with the content. There are several instances in which a will can successfully be contested.

Undue Influence

This is when pressure has been put on the testator either through coercion, manipulation, intimidation or deception to influence the contents of the will to the advantage of the party in question. The courts usually set a stringent standard for proving this kind of behaviour that they consider “undue influence”. Trying to forge a friendship, relationship or ingratiate oneself with the testator will usually not be significant enough to prove undue influence, even if trying to benefit under the will was motivation for the party ingratiating themselves with the testator.

What the court do look for is evidence of psychological or physical pressure that coerced the testator into doing or adding something to the will that they would otherwise not do. Examples of coercion include; threatening violence against the testator, refusing to provide for their medical treatment if they are not included in the will or falsely accusing a fellow beneficiary of the will of behaviour that may cause them to fall out with the testator.

Testamentary Capacity

Testamentary capacity refers to the mental or intellectual capacity of a testator to make or alter a valid will. The key factors when deciding if a testator has satisfactory capacity is whether they were able to understand:

a) The effect of the will they made

b) The extent of the property they were disposing of

c) The expectations of people who they reasonably ought to include in their will (ie. natural beneficiaries)

Adults are usually presumed to have the mental capacity to formulate a will. In instances in which a testator may be adjudged to not have the sufficient capacity to form a valid will if they were suffering from a mental condition such as Alzheimer’s or dementia at the time the will was made. The only way to successfully prove a lack of testamentary capacity is through assessment by a qualified medical or psychiatric professional, who looks at the testator’s mental capacity at the time the will was made. In most cases medical records and interviews with witnesses who were in contact with the testator at the time they made the will, form the main evidence used to prove mental incapacity. Ultimately, the court looks to instances in which this mental incapacity has been taken advantage of to make the testator change the terms of the will in a manner in which they would not have done, had they been of sound mind.

Invalidity of the Will

Other Ways to Challenge a Will

In some instances you can challenge a will if the testator has made promises to you during their life that you will inherit some property and you have acted upon these inferences (usually financially) on the expectation that you will inherit. An example could be if you have a relative who promises you that you will inherit their cottage when they die. If you were to spend money providing repairs and decorations on the cottage, in the expectation that you will inherit it in the future, and subsequently discover that the cottage has not been left to, you may be able to contest this aspect of the will under the principle known as Proprietary estoppel.

What to do Next

If you believe you have strong grounds for contesting a will then please contact our Civil Litigation partner Gurpreet Reehal on 0208 866 6464 or e-mail Gurpreet@sethi.co.uk  who will be more than happy to discuss your issues with you.