How to contest a will – expert legal advice

Challenging a will and probate claims

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If you need to contest a will and have concerns about how a will was prepared, think that the person who made the will might have lacked the testamentary capacity to make a valid will, be worried about how or why an earlier will was changed, or have concerns over how a particular clause in the will is being interpreted, Lodders can help.

We can give you practical and expert legal advice on your personal situation, including defending a will that is being challenged and contesting a will.

Who can contest a will?

What are the grounds to contest a will?

• Lack of capacity to make a will
• Undue influence
• Lack of knowledge or approval
• Fraudulent calumny

1. Lack of capacity to make a will

If you are concerned that the testator (the person who made the will) did not have capacity to make a will, you may be able to challenge its validity.

If you are successful, the will in question will usually be held to be invalid and the deceased’s estate will pass in accordance with any earlier will or the intestacy rules if there is no earlier will. Click here to find out more about the intestacy rules.

For a claim to be successful, it must be shown that the testator lacked testamentary capacity. This is a very specific requirement.

The testator has testamentary capacity to make a will if they can:

• Understand that they are making a will and appreciate its effects;
• Have some understanding of the extent of their property;
• Comprehend the individuals for whom they would usually be expected to provide; and
• Are not affected by any ‘disorder of mind or insane delusion’.

Claims under this ground are usually bought when the testator had a medical diagnosis of, for example, dementia, depression, anxiety, psychosis, confusion, and personality disorders, to name just a few. These can all impact on a testator’s ability to make a will to varying degrees and, of course, each case is fact specific.

2. Undue influence

The contents of a will must represent the testator’s true wishes. If it does not, it could be held as being invalid. The burden of proof for proving a claim under this ground lies with the person alleging that the will is invalid.

This means that, whilst family, friends and relatives may make suggestions about how a person may leave their estate in their will and can exert pressure in this regard, it will not amount to undue influence unless it can be proved that the will no longer reflects the testator’s own true wishes but instead reflects those of the person exerting the influence, and the only reason why the will was made was to essentially “keep the peace”.

Undue influence claims – from persuasion to coercion

Undue influence claims are particularly fact-sensitive and difficult to prove, not least because the testator, who is the main witness, will have died by the time the challenge is brought, and acts of coercion usually take place in private when no one else is around.

The following factors are therefore considered as being relevant in determining the question:

• The physical and mental strength of the testator is relevant in determining how much pressure is necessary. The will of a weak and ill person may be more easily overborne than that of, what the court has described as, a “hale and hearty one”.
• The length of time over which such pressure could have, or was, placed. ‘A “drip drip” approach may be highly effective in sapping the free will of a testator.
• Whether a professional, and in particular a legal professional, is involved will always be relevant. Evidence that the testator had received proper and adequate independent advice will diminish the possibility of a finding of undue influence. By contrast, the involvement of the major beneficiary may invite heightened suspicion and scrutiny.
• An assessment of the motive of the testator and/or defendant. The court will consider whether the will makes sense, given all the circumstances of the case. For instance, was there a breakdown in the relationship between family members? Did the testator rely on the defendant and/or were they vulnerable to their suggestions? How does the will compare to the testator’s previous wills or expressions of their testamentary wishes?

If you are concerned that a testator was unduly influenced into making a will, we can help review the will and surrounding circumstances to access the strength of any potential claim. Equally, if you are defending a claim on this ground, we can assist.

3. Lack of knowledge or approval

For a will to be valid, the testator must have known and approved its contents.

Examples of circumstances that might excite the court’s suspicion include:

• Where someone other than the testator provides the initial will instructions, whether or not that person stands to benefit under the will.
• Where the will was prepared by someone who stands to benefit from it the most
• If the will departs from previous wills without explanation
• The will contains expressions, mistakes or dispositions that are out of character
• The will was not read over to the testator or they were not given an opportunity to read it
• The testator was blind or deaf

This is by no means an exhaustive list and challenges bought on this ground are very fact specific.

If you have concerns that a testator did not know or approve the contents of their will, we can help provide advice and guidance on the strength of any potential claim. Similarly, we can assist with defending a claim on this ground.

4. Fraudulent calumny

A claim on the ground of fraudulent calumny is brought in circumstances where it is alleged that one beneficiary (usually the one who is set to benefit the most under the terms of a will) fraudulently poisoned the testator’s mind against another natural beneficiary who is either not mentioned in the will altogether or is set to receive a smaller bequest then they might have otherwise have received.

Therefore, if a person makes a false representation but genuinely believes it to be true, this will not amount to fraudulent calumny. It is only if the person making the representation knows it to be false or is reckless as to whether the representation is true or false that there can be fraudulent calumny.

To succeed with a claim under this ground, dishonesty is the key component that must be proved. Whilst it can be difficult to bring a claim under this ground because it may not be easy to gather the necessary evidence required, recent years have seen a steady increase in the number of cases bought before the counts. A claim under this ground is often bought alongside other grounds such as lack of capacity or undue influence but, even where those grounds are not available, it can still be worth exploring a claim under fraudulent calumny in greater detail as it may prove to be the missing piece of the jigsaw.

Contest a fraudulent or forged will

Where a will has been prepared by an individual rather than a law firm (often termed a “homemade will”), the preparation of it can appear suspicious. It is possible that there may be an element of fraud or forgery involved.

However, raising an allegation that a will has been fraudulently prepared or that the signature on it has been forged by someone and so does not belong to the testator is a very serious matter. Thorough investigation of all the evidence is therefore advisable before raising such an allegation, not least because it can have everlasting repercussions and ruin relationships.

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Will construction disputes and rectification claims

At the time at which a will is drafted, it is usually the case that everyone involved in its preparation and drafting agrees on its meaning and the testator is happy to sign it off. However, sometimes, problems can occur with the interpretation of a specific clause(s) when the executors come to administer the estate. The clause may be ambiguous there may be a clerical error or the beneficiaries may argue that the clause does not reflect the true intentions of the deceased. This can leave the executors unclear about what they should do.

Of course, by that stage, the testator will have passed away and so it will not be possible to ask them what they meant in respect of the particular issue. If a solicitor drafted the will, it may be possible to obtain a copy of the will file and see if there are any notes which help to shed some light on what the testator truly intended.

Will construction disputes

Where a particular clause in a will is unclear, the process by which that clause is interpreted is known as “construction”. The court’s powers to insert, remove or change words used in a will is limited and the starting point is that the court must give the ordinary meaning to the words used and this is ascertained on an objective basis In other words, the court will look at what a reasonable person would understand the words to mean, having regard to the relevant background of a matter.

The court will therefore put itself into the shoes of the testator and give weight to the facts and circumstances known to them at the time they executed the will. It will then try and construct the words used, with that background in mind, in an objective fashion. It will not base its decision on the testator’s actual, subjective, intention.

Rectification claims

Where a will fails to carry out the true intentions of a testator because (a) there is a clerical error in the drafting or (b) there was a failure by the person drafting the will to understand the testator’s true intentions, an application can be made to the court under Section 20 of the Administration of Justice Act 1982 to have the will rectified.

The court therefore has the power to make an order which can amend a will so that it results in an outcome that the testator intended. The court will of course need to be satisfied as to what the testator’s true wishes were and so strong evidence in this respect will be required. An application under this section must be made within 6 months of the Grant of Probate being obtained, unless the court orders otherwise and so it is important to act quickly.

Where the will does not include the true intentions of the testator due to poor drafting it may also be possible to bring a professional negligence claim against the professional will writer for legal costs incurred as a result of having to issue proceedings to have the terms of a will constructed or rectified.

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