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Ways to challenge a will

Now that there are many ways disappointed beneficiaries can challenge a will in court, it's wiser for HNWs to review and ensure its validity, writes James Woods

There are a number of ways a will can be challenged and in recent years a number of high profile cases involving charities have frequently been in the headlines.

Generally speaking to overturn a will a court would need to be satisfied, on the balance of probabilities, that any of the following circumstances I will be highlighting below were the case at the time the will was completed by the deceased.

The first instance: it was completed without the proper formalities. A will needs to be signed in the presence of two witnesses in accordance with strict legislative requirements of section 9 of the Wills Act 1837.

Secondly, the will will be overturned if it lacked testamentary capacity – i.e. the deceased did not know the extent of their estate, what a will was and its effect, were not aware of the persons whom they should benefit and, finally, they were suffering from a delusion of the mind that caused them not to benefit those persons.

Similarly, the document may not carry weight if the individual did not know and approve of its content – i.e. the deceased must be aware of the extent of what they were giving and to whom.

Lastly, it will also be problematic if there was undue influence exerted on the individual or he/she were subjected to fraud –there must be coercion or outright fraud for such a challenge to succeed. Persuasion or appeals to be included in a will are not sufficient. It is rarely brought as a claim on its own but is more commonly added to another challenge, for example lack of capacity.

In addition to the above, many disappointed beneficiaries consider bringing claims under the Inheritance (Provision for Family and Dependants) Act 1975. Spouses, children, adult children, cohabitees and dependents are within the categories of persons who can apply to the court for reasonable financial provision from an estate. These types of claim in recent years have become increasingly common.

Homemade wills are more susceptible to validity claims, therefore it is prudent to seek professional advice, to mitigate the risk of  contentious probate disputes.

Solicitors and other legal professionals are trained to ensure that a will is validly completed. The existence of the file created by the solicitor should leave evidence in support of its valid execution. Additionally, courts attach significant weight to the opinion of the solicitor or doctor who took instructions/examined the deceased at the time the will was completed. Therefore if a comprehensive note can be made by the solicitor/doctor where there may be concerns about a challenge then this would be strong evidence in support of the will’s validity.

In terms of claims under the 1975 Act, these can be more difficult to safeguard against as certain persons under the act have a right to apply for provision, even where such a claim is misguided. However, it is always helpful for the deceased to leave a letter of note explaining why someone has been excluded, as this may help defuse the situation and provide clarity to the disappointed beneficiaries.

It is also wise to include some provision for dependents or consider including what is known as a forfeiture clause in the will– this being a gift conditional on the recipient not bringing a claim against the estate. It is also advisable to ensure that a will is reviewed frequently (at least every five years) to ensure that it is up to date and has been made at a time when all potential dependents have been taken into consideration.

James Woods, an Associate in the Dispute Resolution team at Thomson Snell & Passmore LLP.