Wills and Inheritance Disputes

You can contest a Will on the basis that it is invalid by relying on one or more of the following grounds:

• The Will does not comply with the formal requirements of section 9 of the Wills Act 1837;
• The testator lacked the necessary mental capacity;
• The testator lacked knowledge or approval of the contents of their Will;
• The testator was subject to undue influence;
• The Will is forged/fraudulent.

You may alternatively consider that the Will is valid but feel that you have not been sufficiently provided for (if at all) and therefore think about making a claim under the Inheritance (Provision for Family and Dependants) Act 1975.

The Inheritance (Provision for Family and Dependants Act) 1975 (the Act) enables certain categories of persons to make a claim against an estate on the grounds that the deceased’s will (or intestacy) does not make reasonable financial provision for the applicant. Any claim under the Act must be made within six months of the issue of the Grant of Probate (otherwise the permission of the court is required). The deceased must have died domiciled in England and Wales

The following categories of persons are eligible to make a claim under the Act:

• A current spouse or civil partner of the deceased;
• A former spouse or civil partner of the deceased who has not remarried and who has not received a final financial settlement following the breakdown of the marriage or civil partnership;
• Any person who, during the whole two year period immediately before the date of death, was living in the same household as the deceased in the manner of a spouse or civil partner;
• Any child of the deceased including illegitimate, legitimated and adopted children of any age;
• Any person treated by the deceased as a child of the marriage or civil partnership;
• Any person not included above who was maintained wholly or partly by the deceased immediately before his death otherwise than for valuable consideration. The requirement of ‘no consideration’ excludes paid domestic staff from having a claim under the Act.

An individual will be considered to have sufficient mental capacity to make a Will if he understands the following:

• The nature of the act of making a Will and its effect, i.e. that he is setting out to whom he wishes his property to pass on his death;
• The extent of his property; and
• The individuals for whom he is morally bound to provide and the consequences of not providing for such individuals.

If a Will appears rational then there is a presumption that the testator had mental capacity and the Will will be admitted to probate unless anyone can produce sufficient evidence to the contrary.

If you have doubts about the capacity of a testator then the best place to start is probably the file of the solicitor who prepared the Will.

When making a Will for an elderly or ill testator, or anyone with dubious testamentary capacity, it is best practice for the solicitor to obtain a written medical opinion and, if possible, to arrange for a doctor to witness the signing of the Will. If either of these steps have been taken, it will be difficult to challenge the testator’s mental capacity.

In the absence of a medical opinion or doctor’s signature as a witness, there may be a file note made by the solicitor, commenting on the testator’s capacity and referring to their behaviour and state of mind at the time of execution of the Will. This may also provide good evidence that the testator had the requisite testamentary capacity.

It should be noted that the usual deterioration of memory with old age does not necessarily mean that the testator lacks capacity and, even if there are general doubts about the testator’s capacity, a Will may still be valid if it can be shown that it was made during a lucid interval.

A testator must know and approve of the contents of their will in order for it to be valid. If a will, on its face, has been duly executed and there is proof of testamentary capacity, then knowledge and approval will normally be presumed. However, if the circumstances surrounding the making of a will appear to be suspicious, parties may consider bringing a claim for want of knowledge and approval.

In these types of claim, the court will look at the circumstances surrounding the preparation and execution of the will and where those circumstances appear to the court to be suspicious, the burden of proving that the testator did understand and approve his will then falls to the person wishing to rely on it.

The Will might have been prepared by a beneficiary who forged the signature of the testator either before or after their death. In these types of claim, a handwriting expert would normally be instructed.

A Will could be fraudulent if the testator has left someone out that would otherwise have benefited on the basis of misrepresentations made by another person.  Alternatively, whoever drafted the Will on behalf of the deceased could have left a large portion of the estate to himself without the deceased knowing.