Contesting a will

The main grounds to contest a will are based around the writer having a lack of mental capacity, the party looking to contest the will must prove that the deceased could not write the will. The Mental Capacity Act 2005 states that’s a person will be presumed to have capacity until it is proved they do not. A person will lack capacity if, at the time in question they are unable to decide for themselves because of an impairment, or a disturbance in the functioning of their brain. The deceased did not understand and approve the content of the will, if the court is suspicious, it is up to the defence to prove that the deceased had full understanding.

 

Examples that could create suspicion are where the deceased:

• Was hard of hearing or had a speech impairment; 
• Visually impaired; 
• Low levels of literacy; 
• Frail, unwell or vulnerable; 
• Is purported to have directed that they will be signed by someone else;
• Undue influence – this is where there was pressure to make or change a will. The deceased must have acted against their own volition and coerced into making or changing a will when they didn’t want to. it is very difficult to obtain sufficient evidence for this claim especially when the chief witness is deceased;
• Forgery or fraud – if it can be proved that the will has been forged then it will be invalid. It is always advisable to get a handwriting expert’s opinion. Claims on this ground are rare nut can happen; or
• Rectification or construction – this ground will be used where the will is ambiguous, unclear or does not carry out the person's wishes. This mistake could have been made by the will writer so the will could still be valid. Be sure to get advice. A claim of this nature must be issued within 6 months of a grant of probate being issued. 

 

How we can help

Lestons currently second such work to a third-party independent specialist, please note we make no commission from these referrals but do need clients to open a case so that we can prepare a brief for them. To gain our assistance you need to open a case, this is done by taking advantage of our free consultation service, activated by the link at the top of the page, should you wish to start a case the caseworker will send you the suitable payment link. Please note your caseworker can only give generic advice, their role is to prepare your details for handling by our legal team and to act as your point of contact, they will also issue you with your Password and PIN, these will be needed to log onto your client dashboard. From your dashboard you will be able to manage and view every aspect of your case, upload documents, images, files etc.