What Are The Grounds To Contesting a Will?

When you lose someone you love, it’s a difficult and trying time to get through. One of the saddest parts of such a loss is that individuals can suddenly become focused on personal gain when it comes to the issue of the will. Especially when the will was either written or amended when the person you have lost was potentially not of sound mind and body. This and other grounds to contesting a will can and do crop up.

In this situation, you need to know what the grounds are for contesting this document so that you can make sure that the wishes of your lost loved one are carried out as they would have wanted and not taken advantage of.

Understanding the reasons for contesting

When you look up how to contest a will, you will most likely be bombarded with legal jargon that can easily confuse you if you yourself are not from a professional legal background. In the face of this, it can feel like giving up is easier than trying to navigate the law around the leaving on wills, but you must press on in order to get justice for your loved one.

To help you out, this article has broken down what some of the grounds for contesting a will are in simple terms, as follows:

Testamentary Capacity

Testamentary capacity refers to when the individual in question made the will and whether or not they are the following.

  1. They understood they were making a will and the effect of that will.
  2. The person knows the value of their estate
  3. He/she understands the consequences of leaving someone out/including someone in their will.

This last point is especially important. For instance, say your loved one is a family member who would have wanted to leave money to support your family. Then, in their last days, they did not. They wouldn’t be of the sound mind to understand that you were relying on that support to get by.

Lack of valid execution

This refers to the legality of a will and its signing. A will requires the signatures/presence of at least two witnesses and the signature of the testator themselves. If you think this isn’t the case, then you have grounds to contest the legality of the will.

Undue influence

This is something that is potentially hard to contest on because it requires hard evidence. However, it is not impossible and does happen.

Undue influence is when the testator deals with coercion in some way, either through kindness or threat. In turn, this coercion leads to amendments to their will which they wouldn’t do without such influence. Chances of contesting a will, in this case, will depend on the evidence you have, and the circumstances of each individual situation.

Fraudulent or Forged wills

Fraudulent wills can occur in a number of circumstances. For example, say that someone writes the will on their behalf and subsequently wrote themselves into it. This would be a fraudulent activity. Alternatively, if someone spoke to the deceased as they wrote the will. In turn, they persuade them to leave someone out or write themselves in. That, too, would be a fraud and make the will invalid upon contestation.

How to Tell If a Will is Fraudulent

Is Your Will Fraudulent? We can reveal the signs that it is. A commission of fraud with a Will is in many cases very difficult to prove. Nevertheless, these acts of fraudulence are a reality. But is your will fraudulent?

In truth, there’s a variety of reasons why the last Will of a testator might not be valid.

Perhaps there was coercion in some way, or their signature is shown to be a forgery.

In other cases, the testator is simply not of the right mind as they construct and sign the will. For example, if the testator had Dementia when the will undergoes an update. That alone is enough for the courts to consider the Will invalid.

If a Will is fraudulent, then an earlier version of the Will may be the one the law deems valid. If there is no such Will, it’s likely that the government will take over regarding dictating who the beneficiaries are.

How Can You Tell If a Will is Fraudulent?

There are a few warning signs that you should look out for when determining whether a Will is fraudulent or not. Just because the Will doesn’t leave you what you thought you deserve doesn’t automatically make it fraudulent. Some key examples of fraud include the following.

  1. Complete destruction of the original Will. Subsequently leaving behind a newer revision that is suspicious to family members.
  2. Signature of the Will is either by force, forgery or fakery. You will need to provide examples of their real signature to submit into evidence, though this doesn’t always result in a Will being fraudulent.
  3. The Will does not have a witness present at signing, or lacks a witness signature.
  4. There are extenuating circumstances that indicate the tricking or coercion of a testator into signing this new Will.
  5. If a caregiver takes care of all the testator’s needs for many years. Thereafter, the Will is unreasonably favouring towards them.
  6. The Will was not made with legal counsel on hand; it was instead made at home.
  7. The Will undergoes changes when the testator was in a hospital or made when they were not of sound mind.

What to Do if You Believe a Will is Fraudulent?

If you believe the Will is fraudulent, you must first have the right to contest a will. But who can contest a Will? Generally speaking, spouses, civil partners, and blood relatives can contest a Will.

However, some non-blood relative exceptions became valid by law in recent years. A surrogate child/adoptee, for example, in all but name can also contest a Will.

If you believe that a Will is fraudulent you will need to follow these steps:

  1. Contact Will Dispute Lawyers to see if you have a case.
  2. Gather Evidence that supports your claim that the Will is fraudulent.
  3. Acquire Witness Reports that corroborate the evidence that the testator was not in sound mind or otherwise subject to coercion.
  4. Choose Settlement or Pursue Legal Action to acquire what you believe is a fair deal.

It is important to note that it is very difficult to contest a fraudulent Will. Be very careful in collecting as much evidence and testimonies as you can.

Five Best Ways to Contest a Parent’s Will

The Inheritance Experts share five tips on how to contest a parent's will

Though it seems like it is obvious that a deceased parent should want to leave behind their estate to their children it is not a legal requirement in the UK. In fact, in the UK adult children often receive nothing.* In turn, that can lead to dissension, and even some desire of these children to contest a parent’s will.

The Inheritance Provision for Family and Dependants Act 1975 allows for certain people of classification to make a claim. They can, effectively, claim that the will does not make sufficient (or, any) financial provision for them or their immediate dependants.

Recipient(s) of the money and estate instead will depend on who was financially dependent on the late party. In this case, the spouse or children under the age of 18.

Why would you need to contest a parent’s will

If you believe you were unfairly left out of your parent’s Will, you do have the right to contest the matter. There are many grounds for contesting a will, but first, you need to understand one central truth about wills.

One thing you will need to account for is that testators have a legal right (testamentary freedom, in legal terms) to leave assets to whomever they like. For example, if a daughter was estranged from her mother, that daughter could be left out of all financial provision in the will.

Perhaps the will was not updated to reflect the deceased’s evolving family situation. Or the will was updated when the parent has Dementia or was otherwise not in their right mind.

Circumstances where you should contest a parent’s will

As stated before, in most cases self-sufficient adult children will not receive assets from their parent’s estate unless explicitly stated otherwise in the Will. If, however, the deceased did not have a married spouse or civil partner, then the estate should transfer to their next of kin.

Please be aware that, unless you’re an only child, other family members all will have their own views on this, whether it’s a case that the father dies or it’s the mother’s estate. For England and Wales, that might also mean they’ll have their own law firm working full-time for their own interests.

How does probate affect the contest of a parent’s will?

If the testator’s will is invalid, you can enter a ‘caveat’ against the state that prevents a grant of probate. Moreover, it’s also possible to contest a will after the grant of probate.

If their mental capacity is in question

Dementia and other mental illnesses that take away a person’s right of mind. Also, it renders useless their ability to make rational decisions are taken into consideration by the courts. Dementia and these other illnesses, however, can be difficult to prove as they fluctuate.

If your parent updates their Will on a “good day”**, then updates to their Will are valid. However, if they update the Will when they were having a relapse, you can contest it.

If there is a cause for suspicion

There are a few signs of fraudulence you should know of. Though difficult to prove, you can win the right to instal a previous will if you do. Some examples of fraudulence include the following examples.

  1. A signature that is not your parent’s but a forgery;
  2. Trickery or coercion (in essence, undue influence) occurs in your parent’s life before their death;
  3. Missing a witness signature or lack of legal representation when making the Will.

You will need to compile a lot of evidence and witness reports in order to prove a Will is fraudulent. If you succeed, you can request to instal the terms of the previous version of the Will (if it exists).

How long to contest a will?

If you suspect there was fraudulent activity surrounding your loved one and their last Will, you will want to contact a lawyer before the Will is entered into Probate. Accordingly, you would need to go to Probate Court to fight for your case.

Otherwise, you can proceed by contesting a Will after probate, so long as you rely on legal representatives to fight for your case.

In most cases, a settlement should resolve your issues. But if it doesn’t, you can always take the matter to court – and it’s best to do it with lawyers who specialise in inheritance issues.

Some more about The Inheritance Experts

Furthermore, the solicitors we work know how to deal with inheritance disputes effectively and efficiently. Therefore, we’re universally committed to securing the best possible outcome for you.

*Unless the Will explicitly states that the deceased children are to be included when dividing up their assets

**A good day is where they have for the most part full control of themselves.

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