Challenging A Will

Costs of challenging a will 

An ageing population resulting in a marked increase in people suffering from dementia and Alzheimer’s disease, means that challenges to wills are on the rise.  But it’s not something to be done lightly.  This is a highly contentious and specialised area of law, with little certainty of outcome.  The unique facts of individual cases are critical in decisions.  Litigation can be prohibitively expensive, with costs running into hundreds of thousands of pounds.  And the emotional cost – with arguments dragging though the courts for anything up to three years – is unquantifiable.  This means for those that choose the path – the stakes will be high!

Grounds for challenge

The primary grounds forcontesting a willare that it’s invalid.  If proved, then it will be set aside in favour of any earlier will, or, if none exists, property will be dealt with as if the deceased died intestate.  It’s important therefore, to establish that you would have inherited in either of these cases.  

What makes an invalid will?

Improper Procedure

A will must be:

  • in writing
  • signed by the person making it or under their instructions
  • the signature to be witnessed by two people who aren’t beneficiaries, nor married to beneficiaries
  • made by someone of at least eighteen years of age

Personal Circumstances

The testator must:

  • be of sound mind
  • understand what they are doing and the consequences
  • not under duress or pressure

Mental Capacity

The Mental Capacity Act 2005 gives the formal definition of mental capacity.  The person must be capable of:

  • understanding information relevant to the decision they’re making
  • retaining information, even if only for short periods
  • using or weighing the information as part of the decision making process
  • communicating the decision  

Testamentary Capacity

In relation to making a will, the test is they must understand:

  • the nature of the document
  • the extent of the estate
  • people who have a natural claim.  And must consider those who might have a moral claim.

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For more information on:

  • Coercion
  • I’m family but I’ve been disinherited
  • Inadequate provision as an alternative means of challenge
  • Contesting the will