How to Challenge a Will

Who can challenge a Will?

Disappointed Beneficiaries

Anyone who may have benefitted under a previous Will or could benefit under the intestacy rules.

Close family members and dependents of the deceased

Anyone who was financially dependent on the deceased.

Creditors

Anyone who is owed debts by the deceased.

How to challenge a Will

There are five ways routes you can take to bring a claim. To invalidate a Will is to succeed on one of these five grounds.

Lack of due execution

Under the Wills Act 1837, there are very strict formalities for executing a will. If those haven’t been complied with, then the will is invalid.

Lack of testamentary capacity

With people living longer and the rise of mental diseases such as Dementia, there is an increasing number of old and vulnerable people without requisite mental capacity to make a will. The legal test for testamentary capacity requires the willmaker go through 4 limbs. The 4 limbs of mental capacity are as follows:

• Understand the nature of the will and its effects.
• Understand the extent of their estate
• Consider all moral claims to their estate.
• Be free from mental disorder or delusion

Test for testamentary capacity

1. Did the deceased understand that he/she was making a Will?
2. Did the deceased understand all the property to which he/she was disposing of?
3. Did the deceased consider everyone they ought to have considered when writing the Will? This includes those they do not want to benefit.
4. Was he/she of sound mind and in possession of their faculties of reason?

Lack of knowledge and approval

This route is quite complex, but is based on the idea that a Will-maker needs to know and approve the contents of his or her will. For example, if a person can’t read, then they can’t read their Will once they’ve executed it, and therefore can’t have the requisite knowledge and approval. This claim is often brought together with lack of testamentary capacity and undue influence as if you fail on one of those claims, you might succeed on lack of knowledge and approval.

Undue influence

This is when someone coerces the Will-maker to make a Will which they did not want to make. This is a popular claim, but it is hard to succeed because making allegations of undue influence is considered very serious by the Court, and therefore they set a high evidential bar. For this reason, these claims can also be risky as if you do not succeed you will almost certainly have an adverse cost order made against you, which means you will have to pay your opponent’s costs.

Fraudulent Calumny

This claim surrounds someone poisoning the mind of a Will-maker such that they do not benefit someone they naturally otherwise would have. For example, a family member slandering other family members to the Will-maker such that they leave them out of the Will.

This claim is also difficult to succeed on as the Courts require actual evidence of the fraudulent calumnies and, unfortunately, these are usually held by either the person who is being accused of the fraudulent calumny, or the deceased, who can no longer provide evidence.

What are the consequences of bringing a claim

Clients should consider the effects of bringing a claim prior to litigating. The Will you are challenging would become invalid, therefore, the previous Will (if a previous Will exists) becomes valid instead. If there is no previous Will, the intestacy rules will apply.

It is important to note, as nobody wants to go through the process of challenging a Will, only to find that the previous Will or intestacy rules will not give them the gift or benefits they are looking to receive.

Rules on costs

Litigation in England and Wales is costly. The general rule is that the unsuccessful party pays for the successful party’s costs. However, probate litigation can be different.

The Court may order the costs of all party’s to be paid from the estate, meaning even if you lose, you may have your costs paid for by the deceased’s estate on the basis that there were reasonable enquiries to be made. For example, was it reasonable to investigate lack of capacity, knowledge and approval, undue influence or fraudulent calumny? If the court thinks it was reasonable to at least investigate those, up to the point where it became clear that they weren’t going to be successful, you may well have your legal costs covered.

Contact Us

To book in a free 15 minute consultation with Thomas Klemme, Partner and Head of Private Wealth Disputes at Quastels, please email tklemme@quastels.com.