Decorative Rectangle

Challenging a Will

This is an ever-growing area of law. People make Wills hoping that their wealth is distributed upon death in accordance with their express wishes but legal challenges to a Will are often made. Below we examine the main reasons for a Will being challenged.

1. The Validity of a Will

Contesting the actual legal validity of a Will is an area of law that has expanded significantly over the last decade. The court will entertain claims a Will is invalid for the following reasons: -

  1. The Will was not correctly executed;
  2. The person who made the Will did not have capacity to do so;
  3. The person who made the Will lacked knowledge or approval to do so;
  4. The person who made the Will was unduly influenced to do so;
  5. The Will is a forgery.

The most common challenges are as follows:

Lack of due execution

The requirements for executing a Will are set out in the Wills Act 1837.  The starting point is that if a Will appears to have been properly executed it will presumed to have been validly executed until proven otherwise.  This is otherwise known as the presumption of due execution.  A Will is properly executed if it is in writing and signed by the testator (the person making the Will) in the presence of two or more witnesses who must sign the Will in the presence of the testator (although not necessarily in the presence of each other). If these formalities are not followed the Will is invalid.

Lack of testamentary capacity

The test that the court will use is to decide is if a testator had the capacity to make the Will is found in the case of “Banks – v – Goodfellow” This concluded that the testator must under understand the nature of the act of making the Will and its effects, understand the extent of the property which he or she is disposing, be able to comprehend and appreciate the claims to which he or she ought to give effect and  finally that no disorder of the mind (mental incapacity) exists that shall affect or pervert his or her sense of judgment.

In cases where the testator’s capacity is challenged on mental capacity grounds it is usually necessary to obtain medical evidence to investigate the issue.

Undue influence

Undue influence is defined as influence by which a person is induced otherwise than by their own free will or without adequate attention to the consequences.  It usually applies to a situation where pressure is put on the testator to overpower his or her real intentions/wishes.  The burden of proof in undue influence cases is high and it falls on the person who asserts there has been undue influence to prove it.  Undue influence can be in the form of physical violence or mental bullying or an attempt to simply wear down the testator to do things against his or her will.  Undue influence is usually very difficult to prove due to a lack of witnesses. Historical behaviour of the testator becomes particularly important in such cases.

If a Will is overturned by the Courts for any of the above reasons, then in the absence of a valid earlier Will then the rules of intestacy will be applicable.  These set out the order in which the spouse and other relatives are entitled to the deceased’s estate

2. Claims under the Inheritance (Provision for Family and Dependants) Act 1975

Sometimes where a Will is valid a person who is not left what they were expecting may decide to challenge the wishes of the testator on the basis that they had a level of financial dependence upon the deceased which has not been reflected in the terms of the Will.  This could lead to a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Such a claim may be brought before or within 6 months of any Grant of probate and would be for reasonable financial provision from the deceased’s estate.

The Act lists those persons who are able to make a claim namely: -

  1. A spouse of the deceased;
  2. An ex-spouse of the deceased (who has not remarried);
  3. A civil partner of the deceased;
  4. An ex-civil partner (who has not re-partnered);
  5. A person (not being a spouse or civil partner or a child of the deceased) who lived with the deceased as man or wife for two continuous years before death;
  6. A child of the deceased (including unborn, illegitimate and adopted children);
  7. Someone else not in 6. above treated as a ‘child of the deceased’,
  8. Any other person who does not fall into the above categories who is able to show a genuine and meaningful level of dependence upon the deceased immediately before the deceased’s death.

The court will take into account a multitude of circumstances in deciding whether an award ought to be made to an applicant including the age of the applicant, size of the estate and the financial positions of the applicant and beneficiaries under the Will among many others.

3. Removal of an Executor to a Will

An executor to a Will has a fiduciary duty to the beneficiaries under that Will to administer the estate in a careful and competent manner. Occasionally, executors abuse their duties by acting recklessly or dishonestly leading to financial loss for the beneficiaries. For example, the executor may steal from the estate or fail to keep proper accounting records. Under such circumstances a beneficiary can apply to court for the removal of that executor (or executors). Such applications can be expensive but are often necessary to make sure the estate is protected from further damage.

Where there is no Will an administrator (rather than executor) is appointed to administer an Estate. Again, incompetent and/or dishonest administrators can be removed from their position by the court if those beneficiaries under the rules of intestacy are prejudiced.

Applications to remove executors/administrators can also be made where they lack the mental or physical capacity to fulfil their fiduciary duties and where they become disqualified by for example being convicted of a crime e.g. fraud

The procedures for challenging Wills, for bringing claims under the 1975 Act and removing executors/administrators are complicated and require specialist legal advice.  We have a very experienced team here at Band Hatton Button who can help. Please feel free to contact Malcolm Thomas on or John French on to discuss your situation and book an appointment.