Grounds for Contesting a Will UK

Date Added 20.03.24

The loss of a loved one is often a difficult process to navigate and can be made more challenging if you suspect that the Will of the deceased individual (known as the ‘testator’) may be invalid.

There are several different ways that the validity of a loved one’s Will can be challenged and given the complexity of the process, it is not a decision to be taken lightly. If you are thinking of asking the question “Can I contest a Will?” or “On what grounds can I contest a Will?” it is important to understand exactly what is involved.

Tollers’ highly experienced Contested Probate team looks at the grounds for contesting the validity of a Will below.

1. Incorrect Execution of the Will

When first considering the grounds to contest a Will, a good starting point is to see if it breaches Section 9 of the Wills Act 1837, which is required for a Will to be considered legally valid. The section states that a Will must be:

• In writing;
• Signed by the testator (or someone else in the testator’s presence and by their direction);
• Signed in the presence of at least two independent witnesses, who must attest and sign the Will.

If any of the above formalities are not met, the testator’s Will may be deemed invalid.

2. Testamentary Capacity

When preparing a Will, the testator must demonstrate that they have testamentary capacity. What this means is that the testator must have both the legal and mental ability to construct or change a Will, for the Will to be valid. The criteria to evaluate someone’s testamentary capacity was set out by The 1870 case of Banks v Goodfellow where the testator must:

1. Understand the instructions they are giving and the consequence of those instructions;
2. Understand the extent of their property;
3. Understand the consequences of including or excluding individuals from their Will; and
4. Not be suffering from any ‘disorder of the mind’.

The absence of any of the above criteria may cast doubt as to the capacity of the testator at the time of the making of their Will.

3. Knowledge and Approval

The testator must know that they are making a Will and approve its contents. Even if it appears that the testator had testamentary capacity, it is still possible to contest a Will on this ground if you can demonstrate that the testator was not actually aware of the contents of their Will, or that there were suspicious circumstances surrounding its preparation, for example, a main beneficiary was heavily involved in the drafting of the Will.

4. Undue influence

In order to rely on this ground, it must be demonstrated that the testator was coerced or pressured into making a Will or change to their Will, which overrides their actual wishes. This is a difficult ground to prove, which goes beyond mere persuasion and requires evidence that there can be no other explanation for the gifts/provisions contained within the Will, other than that the testator was unduly influenced.

5. Fraud and forgery

A Will can be deemed invalid if it can be shown that the testator’s signature is forged, or if the content of the Will is found to be fraudulent. Contesting a Will on the basis of forgery is likely to require a handwriting expert to determine whether the signature was that of the testator.

Legal standing

In addition to demonstrating one (or more) of the above grounds, you must also show that you have legal standing to contest the validity of the Will, meaning you must be a beneficiary of more under the directly previous Will or under intestacy (if there is no earlier Will).

Talk to Tollers on Contesting a Will

If you believe that a loved one’s Will has become invalid and their wishes are no longer being kept, contesting the Will might be your next step. Seeking out expert legal advice is imperative in ensuring a case can be made and the outcome is beneficial.

Tollers’ expert contentious probate team has years of experience in ensuring clients achieve the best outcome in contesting a Will.

if you think you might have a case regarding a loved one’s Will becoming invalid or would just like some advice…Talk to Tollers on 01604 258558. Our experienced contentious probate solicitors will be happy to help you.

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