There is rarely a more difficult and emotional time when a loved one passes away. What can add to grief is when one considers that the loved one’s Will setting out what should happen to their estate may be invalid.
A Will formalises wishes for how assets are to be distributed after someone’s death. If there is no Will, then intestacy rules apply, and an Estate will be distributed under strict rules that may or may not align with the deceased’s wishes.
There are strict rules setting out what constitutes a valid Will or valid amendments to an existing Will. It must be in writing, signed by the person making the Will, known as the “Testator”, and signed in the presence of two independent witnesses.
Circumstances often arise where someone wishes to contest a Will. However, it cannot solely be contested based of someone not “liking” the content of the Will or disagree with the wishes of the deceased. Some circumstances when a Will can be contested are when the Will is not in writing or signed by the Testator or when it has not been witnessed by two witnesses. A Will may also be contested on the basis that the deceased did not have the proper capacity to make a Will at that time or lacked knowledge of and approval of the Will or its content. There may also be circumstances where a Testator was put under duress or undue influence to make a Will in certain terms which may give rise to a possible contest.
If there is any suspicion that a Will may be invalid, it should be investigated as a matter of urgency.
How do I Challenge a Will?
It would be unusual for anyone who wishes to challenge a Will to have all relevant evidence at the start and usually lengthy investigations need to be carried out, but this is difficult if you do not know where to start.
First and foremost, a person who seeks to challenge a Will must have the legal right to do so. Only those who benefit under the current Will, or the most immediately preceding valid Will or the intestacy rules, may pursue a challenge.
Professional Will writers should have a file containing all documents and recordings to the Will’s preparation, including details of the steps taken by the Will writer throughout. That will need to be obtained and additional documents such as medical and financial records may be required to determine the validity of a possible challenge.
Throughout the process our Contentious Probate team will be able to assist and suggest what further documents may be required and what additional investigations can be carried out to determine whether a challenge to a Will could be possible or successful.
Wherever possible, a challenge to a Will should begin before the Grant of Probate. It is also imperative to enter a “Caveat” over the estate as a matter of urgency. That prevents an application for the granting of Probate progressing any further.
We strongly suggest that independent legal advice is obtained if someone is considering making a Will. In our experience, the probability of a homemade Will not complying with the necessary rules to be considered valid is higher than that of a Will prepared by a legal professional.