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.

As long as they can do all of these things, even if they choose to do otherwise, the will is  valid.

Coercion

This will be very difficult to prove and requires hard evidence.  Clearly the testator cannot substantiate or deny any claims of duress or pressure.  But some circumstances which might warrant a closer look include the main beneficiary preparing the will, or a carer preparing a will on behalf of an elderly or infirm patient. 

I’m family but I’ve been disinherited

Even if you’re a close family member and expected to inherit, the fact that you haven’t doesn’t make a will invalid.  The testacy laws in England and Wales are very liberal: you can pretty much leave everything to whoever you want, no matter how bizarre it might seem.  Golda Bechal left her £10m fortune to the owners of her favourite Chinese restaurant, much to the disappointment of her five nieces and nephews who challenged this wish.  Despite the will being drafted on a standard bank form, and the vastness of the estate, there was no evidence of coercion or any lack of mental capacity.  Indeed, the parties had become good, close friends and were more like family than those nieces and nephews.  This decision is in stark contrast to that of Bane Kostic who had shown seriously deluded behaviour for some years, before changing his will to leave £8.2m to the Conservative Party, cutting off his only son.  The judge found in that case that this ‘madness’ had affected his ‘appreciation and natural affection for his son’ causing him to disinherit him in favour of those he saw as helping him against the conspiracy of ‘dark forces’. 

Inadequate provision as an alternative means of challenge

Exceptionally, you may be able to make a claim under the Provision for Family and Dependants Act 1975 if you can show you haven’t been adequately provided for.  You need to be married or in a civil law partnership, or previously so, have been cohabiting for two years previously, or a dependent child, whether or not an adult.  Specialist advice should be sought in these cases.

Contesting the will  

You will need to engage asolicitorfamiliar with this type of work.  It’s important to act quickly as these claims are subject to time limits, and the Probate Registry will have to be notified to prevent the estate being distributed.  The solicitor can make the necessary enquiries of witnesses who can comment on the deceased’s state of mind, obtain medical records and look into any suspicious circumstances surrounding the will preparation in support of your case.