Challenging a Will

There are various grounds which can be used to challenge the validity of a Will. However, before the Court will look at those grounds you need to overcome an initial hurdle which is to prove that you are in a class of “disappointed beneficiary” who has suffered a loss as a result of the last Will.

The First Hurdle - a Disappointed Beneficiary

A “disappointed beneficiary” is someone who received more under an earlier Will than under the last Will or someone who would have benefitted under the intestacy rules if the last Will had not been executed and the deceased had therefore been deemed to have died intestate.

If you benefit under an earlier Will but it is not the Will which immediately pre-dates the last Will then you would need to successfully challenge more than one Will in order to get back to the position where “your Will” would be declared the last valid Will and be put through probate. It can be hard to succeed upon a claim against one Will so a claim against more than one Will is even more difficult, however in order for us to assess whether your claim is one worth pursuing then call or email us today for your FREE CASE REVIEW.

 The Second Hurdle - The Grounds of Challenge

Once you have overcome the first hurdle, you then need to convince the Court that one of the following grounds applies to the deceased’s Will so that the Will is effectively “unsafe”. If the Court agrees then it will declare the last Will invalid and the Will which immediately pre-dated it will be declared the last valid Will. If there was no Will which pre-dated the last Will then the intestacy rules will apply (for details of those rules click here.

Claimants should bear in mind that with claims challenging the validity of Wills the burden of proof lies upon them so that the Court starts with a presumption that the Will was valid and the Claimant needs to put forward sufficient convincing evidence to the contrary for the claim to succeed.

Lack of Testamentary Capacity

To succeed on this ground the Court needs to be convinced that the deceased lacked sufficient testamentary capacity to execute their Will. This ground will inevitably rely upon medical evidence as the Court will only be able to assess this with the help of the deceased’s medical records and the evidence of an expert on testamentary capacity. This often means that claims pursuing this ground are expensive as experts’ fees can run into thousands of pounds.

Whilst a diagnosis of conditions such as Alzheimer’s/Dementia can be useful evidence of lack of testamentary capacity it will not be conclusive as sufferers of such conditions can have lucid moments during which time the Court may be satisfied there was sufficient testamentary capacity to execute a Will. Equally, testators may have suffered from a condition which wouldn’t, on the face of it, be considered to be one which would impact their mental faculties but the evidence may show that the combination of medications or a deterioration in the condition meant that they lacked testamentary capacity at the relevant time- i.e. when instructions were given and the Will was signed.

If you are unsure whether your case would be likely to succeed on this ground then call or email us today for your FREE CASE REVIEW.

Undue Influence

To succeed on this ground the Court needs to be convinced that the deceased’s will was overborne by pressure from another person to sign the Will despite knowing that its contents did not contain their testamentary wishes. It is not sufficient to show that the deceased’s mind had been influenced by feelings of affection or dislike towards a claimant as the test is one of undue influence and not merely influence.

This ground can be difficult to succeed upon due to its inability to rely upon medical evidence as much as for the lack of testamentary capacity ground. The main evidence relied upon for this ground is often witness evidence from those who witnessed pressure being placed upon the deceased.

Want of Knowledge and Approval

To succeed on this ground the Court needs to be convinced that the deceased did not know or approve what they were signing when they signed the Will. This can either be that they didn’t realise that they were signing a Will or even if they did that they didn’t know the contents (i.e. they may have thought it contained clauses from a previous draft, for example).

This ground can be difficult to succeed upon when a solicitor is involved in preparing the Will and they give evidence to say that they either read the Will to the deceased or the deceased read it personally before signing.

If you are unsure whether your case would be likely to succeed on this ground then call or email us today for your FREE CASE REVIEW.

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