How do I contest a will?

How do I contest a will?

The family of Marcel Chu were in for a shock after his death. He had a close relationship with his family, so they assumed that he would leave any assets he owned to them. Unbeknown to them, they’d been written out of his will by a controlling carer of Marcel’s.

The former financier had already made a will in 2008, dividing his estate between his immediate family and a close friend. He had “a relatively close relationship” with his brothers, Allen and Stanley Chu, and sister Eva Young, so appointed them as executors of the will he made in 2008.

Under that will, the siblings each got 26 per cent of his estate, whilst a niece and nephew got 14 per cent and a close friend seven per cent.

But that was before Marcel’s carer, Mrs Henderson “took control of his life and excluded his siblings” during the final year before he died. She had taken advantage of his state of mind and poor health in his final days and paid to have a new will drafted in Marcel’s name as his health was deteriorating. Donna then ‘guided his hand’ in signing the new will, in which he bequeathed 40% of his estate to her

“A court heard that the signature on a will handing almost half his £1 million estate to her and her children was not in Marcel’s handwriting. And, given his dire condition, the dying millionaire lacked mental capacity when the document was signed, the judge ruled.”

This story highlights how going through the process of finding out the beneficiaries of a will can be a distressing and unpleasant experience.

But what happens if, like Marcel’s children, you were relying on receiving some form of support from a will and it is revealed you will not benefit or not benefit in full? You are able to challenge a will which you feel does not accurately reflect the wishes of the deceased. This process is known as contesting a will.

What is a contested will?

A contested will is when you challenge the contents of a will and who benefits. If you would reasonably expect to benefit from a will, ie you are a dependent, partner or were financially supported by a person before their death, then you have the opportunity to contest it.

How do I contest a will?

To contest a will it is advisable to do so as soon as possible and before probate is granted. You should also seek legal advice and file a caveat at the Probate Registry as this will prevent probate being taken out in the interim. There are several different ways in which to contest a will depending on the circumstances surrounding the will and the way it was drafted. Below are the various types of contested will.

Lack of testamentary capacity

In order for someone to make a valid will, they have to be of sound mind. In order to meet this criteria they must:

–          Understand that they are making a will and the implications of that will.

–          Be aware of the value of their estate.

–          Understand the consequences of including and/or excluding someone from their will.

–          Not be suffering from any ‘disorder of the mind’ eg. if the testator made gifts that ordinarily they would not have made if they had not been suffering from an illness.  

Lack of valid execution

Under a lack of valid execution, a will becomes invalid if it fails to meet any of the following criteria:

–          The will has to be signed by the testator or by someone else in their presence who has been instructed to by the testator.

–          The signature given by the testator must appear to have been intended to give effect to the will.

–          The testator must sign the will in the presence of two witnesses.

–          Each witness must attest to the will and sign it in the presence of the testator. However, this doesn’t necessarily have to be in the presence of any other witnesses.

When it comes to wills, the legal presumption is that the will is valid unless evidence is supplied to suggest otherwise including doubts to its authenticity. There are strict rules outlining who can and cannot sign and witness a will.

Lack of knowledge and approval

For a will to be valid, the person signing the will must have full knowledge of the contents of the will, its implications and be aware that they are signing a will.

This means that it is possible to contest a will by lack of knowledge even if in every other area, the will seems to be valid. The testator would have to show that they were not aware of the contents of the will when signing or that there were suspicious circumstances around the time of signing. An example of this would be if there is a substantial gift in the will left to one of the witnesses.

Undue influence

Another cause for a case for a contested will is if undue influence may have affected the will and the contents of it. There must be a high level of evidence to suggest that coercion has taken place and that is the only explanation to the contents of the will.

Fraudulent and forged wills

You are able to contest a will if you are of the belief that it has been created fraudulently or forged. Examples of this can be one party drawing up and signing the will as if they are the named testator. Also if someone has knowingly lied to the testator in order to change their opinion on an individual and subsequently has altered their will under false information.

Rectification and construction

This is where clerical error can impact a will. If the person drawing up the will has interpreted it incorrectly as it does not best reflect the testator’s wishes.

A construction claim may be pursued if the wording is ambiguous or unclear. This means that the court would need to determine the meaning of the words in the will.

Further advice:

Please visit our web pages on wills for more information.

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