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Contested Will
John Breeze

John Breeze
Head of Will, Trust & Inheritance Disputes and Associate Solicitor

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Disputes often arise about whether a will is valid, particularly when its terms are unexpected or controversial. While anyone is free to make a will in whatever terms they want, it is crucial that they understand the implications of what they are doing and that the will represents their true wishes.

We explain a little below about the most common reasons why a will might be alleged to be invalid. If you think you might need to make – or defend – a claim that involves any of the issues below then we can help you. We will investigate your case and we will advise you as to the most appropriate course of action, bearing in mind your specific aims and circumstances. We act for claimants, defendants and executors, and our range of experience allows us to look at disputes from all aspects.

Why might there be a dispute about the validity of a will?

  • The person who made the will (who is known as the “testator”) may not have had the necessary mental capacity to make it

 It is essential that a testator has capacity to make a will. Broadly speaking, this means that the person making the will must:

o   Understand what a will is and what it does;

o   Understand the extent of their estate (i.e. what assets their will deals with);

o   Understand who might expect to benefit from their estate (e.g. people who they might have a moral obligation to include in their will);

o   Not be suffering from any illness or condition that affects how they make their will.

Mental capacity is often not a black and white issue, especially as people live longer and the effects of illnesses such as dementia become better understood. Where necessary, we work with leading medical experts and barristers to investigate claims involving mental capacity issues and we will use our specialist knowledge and experience to advise you.

  • Claims that the will was brought about by undue influence

We see lots of cases involving allegations that a person, often someone who is elderly or vulnerable, has been unduly influenced into making a will that does not reflect their true wishes.

Undue influence is tantamount to coercion. The effect of the alleged influence must be that the testator’s free will is overborne, for example because their mind has been poisoned against someone who they would otherwise have named in their will.

Undue influence can be difficult to prove and it should only be claimed where there is sufficiently strong evidence. If you find yourself having to make – or defend – an undue influence claim then we can advise and support you.

  • Claims that a testator did not know and approve the content of their will

 Naturally, anyone who makes a will must know and approve what the will says.

 Cases where there might be a suspicion that the testator did not know and approve the contents of his or her will can involve:

o   Testators who are blind;

o   Testators who cannot read English;

o   Wills that have been prepared in suspicious circumstances, for example where it has been written by someone who stands to benefit significantly from it.

None of the above necessarily mean that a will is invalid, but we can advise you as to whether further investigations are necessary.

  • The necessary formalities have not been followed

 A will must be in writing and it must be signed by the testator. The testator must be over 18 when the will is made.

The execution of a will requires three people to be together at the same time: the testator and two witnesses. They must all see each other sign the will if it is to be valid.

We have seen many cases where wills are alleged not to have been witnessed properly. In some cases, it may be appropriate to consider a professional negligence claim against whoever drafted the will if the problem is the result of inadequate advice or supervision of the signing of the will.

There are some exceptions to the above rules and so it is extremely important that you seek advice if you think they may not have been met.

Other problems with wills

We also deal with a range of other problems that can arise regarding wills. The most common types of problems that we deal with include cases where:

  • The terms of a will are unclear or their meaning is in dispute;
  • A will does not do what the person who made it wanted it to do, because of a clerical error or a failure by the will writer to understand their instructions.
  • There is a problem owing to a failing on the part of the will writer which amounts to professional negligence, for example a failure to act quickly enough, inappropriate advice or an error in the drafting of the will.

We understand that dealing with a contested will is likely to be at best unwelcome, and at worst that it can be a very daunting prospect. Our expert team has vast experience of dealing with will disputes and will advise and support you every step of the way to find the outcome that is best for you.

If you think you might need advice regarding any of the issues explained above, then contact us for a free, no-obligation discussion regarding your case.

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