2nd May 2019

What are the grounds for challenging a Will?

It is commonly agreed amongst the legal profession that claims disputing the validity of a will are on the rise. Solicitors are seeing a general increase in enquiries and court statistics are confirming this with an increase in this type of case. 

In 2018 the insurer, Direct Line, conducted their own research into this growing area. The results, published this year, revealed that a 1 in 4 would be prepared to bring a legal challenge to a loved one’s will.

What's changed?

There are several explanations for what has caused the increase in such challenges.

The dynamic of what constitutes a family has vastly changed over recent years. Long gone are the days of married for life with 2.4 children, instead the family unit has evolved into what can sometimes be a complex unit which can include multiple successive marriages, children and stepchildren to name but a few. Then there are those that choose to simply cohabit or have complete financial independency from one another. 

There are also other factors such as the fact we are all living longer and the considerable increase property prices means there has been a significant change to both individual wealth and expenditure.

The above factors together mean that that there is far more to take into consideration when making a will than ever before.

What are the grounds to challenge the validity of a will?

Challenging the validity of a will in England & Wales is usually on one or more of the following grounds:

  • Undue influence
  • Lack of knowledge and approval
  • Lack of correct execution
  • Lack of mental capacity
  • Construction and rectification
  • Forgery and fraud

The research conducted by Direct Line in 2018 found that the most successful ground for contesting a will was lack of knowledge and approval i.e. at the time the will was made the person making the will did not fully understand or approve of what they were doing. 

Whilst a claim can never be totally prevented there are steps you can take when drafting a will to explain your actions.  Often referred to as a ‘letter of wishes’ a side letter to your will can be drafted in which you can explain in detail to your beneficiaries why you have made a will in such terms.

From my own experience I have certainly seen a significant increase in these claims since my qualification.  As the dynamics of what constitutes a ‘family’ is also still evolving and we see an increase in factors such as care home fees I anticipate that the trend is here to stay.

Natasha Guest is head of Berwins’ Contentious Probate division.

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