Contesting a Will is hugely complicated and very demanding in terms of emotion, time and money, so it’s worth getting plenty of advice on the offset before starting the process.
Many people embark on the process to contesting a Will based on pure emotion, but often this results in failure as you require legal grounds to contest successfully, so make sure you’re not driven by grief.
Apart from fraudulent Wills, which are easier to disprove, there are a collection of grounds that a Will can be contested.
Lack of due execution
In most circumstances, Wills are contested because of ‘lack of due execution’ – to be legal, a Will must comply with the 1837 Wills act, meaning:
- The Will has to be signed and written by the testator or by a guardian within their presence.
- The Will must have been signed by the testator in the presence of two witnesses present at the time.
- Each of the witnesses must attest and sign in the presence of the testator.
- Witnesses must be over 18 and not beneficiaries of the Will either directly or indirectly.
- A Will be assumed as valid if the above is accounted for.
The other, common reason for contesting a Will is the lack testamentary capacity. This includes the lack of knowledge of the Will’s existence or the testator not being of ‘sound mind’ when the Will is created.
This means the testator must understand they are making a Will and understand the effects of it. He or She must understand the true value of their estate, the consequences of Wills benefit and not be suffering a ‘disorder of the mind’ which may affect their judgement.
If the testator of the Will is effected and not completely aware of the Will’s actions, then it can be contested upon death or prior. Other issues can arise if the Will is for a person suffering blindness, paralysis, being deaf/dumb or being unable to speak or write.
If the testator is within any of these categories, it must be proved that he or she is aware and understands the contents of the Will.
Wills created within a few days or hours of death are often viewed with deep suspicion. Relatives who feel they are due something from the estate who are perhaps left out of a last minute Will change are often thwart with problems.
Although there are no legal grounds for this kind of dispute and Will changes, even at the last minute, are completely fine. There are often grounds for contesting based on undue influence or testamentary capacity. Typically though, these cases are hard to prove.