12th Jul 2018

What does it mean to challenge a Will?

Fuelled partly by financial considerations and the fact that as people live longer the chances of disagreement breaking out increases, it is becoming more common for disputes to arise following the death of a family member.

But what do calls from disgruntled family members to contest a will actually mean in practice and what’s involved? There are a number of triggers to such an action, here are some of the most common.

1. Lack of mental capacity

For a will to be valid the person making the will needs to have the mental capacity to understand the consequences of what they are doing. As we are all now expected to live longer the sad reality is that more of us will suffer from some sort of mental illness such as dementia in our later years, making ‘capacity’ a growing issue.

2. The will was not properly signed or witnessed

Understandably, there are quite strict rules surrounding the signature and witnessing of a will.  If, when the will is made and these rules are not followed then it may very well invalidate the will.  For example, it is a mistaken belief that anyone can witness a will being signed, but this is simply untrue. 

An easy mistake to make is allowing a spouse of someone who is a beneficiary to the will to witness it being signed.  Depending on the terms of the will this can either invalidate the whole will or just that particular beneficiary’s gift.

3. Pressure to make a will 

Unfortunately, it is not an uncommon scenario to find that a person is pressured by someone into making a will and leaving certain items or funds to them.  Often it is at a time when the person making the will is vulnerable say through illness or otherwise.  Depending upon the specific circumstances, if unnecessary pressure has been placed upon the person making the will then this may invalidate it.

If, following the death of a loved one, you have concerns that the last will they made is invalid then you should seek legal advice so that you know your legal position.  There may can be time limits to making a challenge and therefore you should seek advice as promptly as possible following their death.

Natasha Guest is an experienced litigation lawyer and heads Berwins’ Contentious Probate division.

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