Contesting a Will – Do I have a Case?

Alison Articles

If you have been written out of a will or do not feel you have been fairly represented and suspect some wrong doing, you may be able to contest the legal validity of the will. In addition to fraud and forgery there are two circumstances that can lead to a will being invalid: where there was undue influence by a third party on the person who made the will, or that person was lacking in testamentary capacity at the time of making their will - for example if they lacked mental capacity due to illness. It is imperative that you receive legal advice when contesting a will as this is a highly complex area of the law but, to give you a better idea of whether you could have a case, the bases on which you could contest a will are detailed below.


Undue Influence


You must show that somebody has manipulated, intimidated, deceived, coerced or put pressure on the person making the will in order to gain advantage from the changes. This can be through physical violence and threats, or even appealing to the sentimentality of the will writer. However there is a difference between doing this and dropping hints or reminding the person of good deeds that have been done for them in the past or attempting to gain pity for future hardships.  This behaviour may be unpalatable, but it is perfectly legal.


The defining characteristic of undue influence is coercion – placing physical or psychological pressure on the person writing the will resulting in them making a decision that would otherwise not have been made. This could involve threats against a loved one, friend or pet as well as direct threats of violence or confinement to the person themselves. A person is particularly vulnerable to undue influence in the very final stages of life, where illness or extreme tiredness may leave them less able to defend their position, leading them to make a decision contrary to their real wishes.


Lack of Testamentary Capacity


Proving lack of testamentary capacity will require expert medical evidence of capacity as at the time the will was written. Evidence from other witnesses who came into contact with the deceased at the time the will was written are taken into account, as well as medical records. Ultimately a court will have to decide whether the person understood the impact of writing a will; the extent of their assets; and the potential beneficiaries for whom they should have considered making provision.


What Happens Next?


If the will is held to be invalid, the most recent valid will is reinstated. If a previous will does not exist then the beneficiaries will be determined by the rules of intestacy. These are simple rules that prioritise marital relationships, civil partnerships and family relationships to determine who will receive the estate. Normally a married partner or person from a civil partnership is entitled to most, if not all, of the estate but, if that relation does not exist or they have passed away, the entitlement passes to the children, then the grandchildren or other direct descendants. You can find out who benefits on an intestacy by following this very simple questionnaire on the government website.


If you would like advice about contesting a will and are looking for probate solicitors in Bristol, give AMD a call on 0117 962 1205 and we can help you through the process.

 

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