In England & Wales, you can leave your estate to anyone you like, for example, a charity, relatives or friends. However, if someone is excluded from a will or they do not receive as much as they had expected from an estate, this may result in a will being challenged or a claim being made against an estate.

How can our solicitors help with contesting a will?

Will, trust or estates disputes can involve limitation periods and risk. Whatever type of claim you may be considering or dealing with, it is important to seek specialist legal advice as soon as possible.

Our dedicated team of contentious probate solicitors can advise you about any claims involving wills, trusts or estates.

Will validity

What are the grounds for contesting a will?

There are a number of reasons why a will or codicil can be declared invalid, for example, if the will or codicil has been forged or it is not signed in a particular way. To be valid, the person making the will must also:

• Have had the ‘testamentary capacity’ (a certain level of mental capacity) required to make a will;
• Have been free from any undue influence when they made their will
• Have known of and approved the contents of their will

Testamentary capacity

What is testamentary capacity?

For a will or codicil to be valid, the person making the will (known as the testator) must have testamentary capacity.

Testamentary capacity is different to general mental capacity. It is a specific test, which requires that the testator understands:

• The size and nature of the estate (i.e. what their assets are and their value);
• Those people for whom they should consider making financial provision in their will e.g. children, a spouse or partner; and
• The nature of the act of making a will and its effect.

The testator must also not have suffered from any ‘disorder of the mind’ or ‘paranoid delusions’ which may have poisoned their affections for someone and affected how they made their will or codicil.

Does ill-health automatically invalidate a will?

No, but if there are any concerns about a testator’s (the person making a will’s) health at the time when a will or codicil is made, this may require further investigation.

It is not unusual for certain illnesses, medication or treatment to potentially affect testamentary capacity. For example, if someone has severe dementia they may not be able to recall all of the people who they should take into account when making a will or the value of their estate.

However, it should not be assumed that, just because somebody suffers from a health issue or they are potentially vulnerable, their will is invalid. It will depend upon the circumstances of each case.

If you are concerned about the validity of a will or codicil, you should consider whether or not any of the above points may have applied at the time when the will or codicil was made.

You can contact our specialist team of contentious probate solicitors who will be able to advise you further about this.

Undue influence

What is undue influence?

Undue influence occurs where the person making a will (known as the testator) is pressurised or “coerced” into making their will in a particular way.

How does undue influence occur?

Undue influence can take a number of forms. In some cases, it may be direct e.g. by making a threat. In other cases, the pressure placed on a testator may be less obvious, or even unintentional. For example, if a vulnerable person is reliant upon someone else for their care, support or well-being, they may feel obliged to include that person in their will (whether or not they want to do so).

Another form of undue influence is where the testator is concerned that care, support or family contact may be withdrawn if they do not leave their estate in a particular way.

Not every vulnerable person will be subject to undue influence and not every person in a position of care or support will exert undue influence. A testator may want to recognise someone who has helped them in their will and, provided that is their choice (free of any undue influence), they can do so.

Why does undue influence invalidate a will?

A will should record the wishes of the testator (person making the will) and not someone else. The testator should be free from any pressure to either make a will, change their will or leave their estate in a particular way.

Undue influence can be difficult to prove and it is a serious allegation to make.

If you think that a testator may have been subject to undue influence, it is important to consider this and also the other grounds for contesting a will (see testamentary capacity and (lack of knowledge and approval) before deciding on how to proceed.

If you wish to contest a will or codicil on the grounds of undue influence you should obtain legal advice. Our specialist team of contentious probate solicitors can advise you about this type of claim.

Lack of knowledge and approval

What is knowledge and approval of a will?

If a will is signed correctly and the person making the will (known as the testator) has the necessary testamentary capacity, it is assumed that the testator knew of and approved the contents of their will. Such ‘knowledge and approval’ is essential in order for the will to be valid.

When does lack of knowledge and approval occur?

In some cases, suspicions may be raised that the testator (person making the will) did not understand or approve of the contents of their will and a court may require evidence about this. For example:

• If the testator was blind, illiterate, deaf or had some other disability that might have affected their ability to understand and approve of the will;
• If the will was signed by another person on behalf of the testator; or
• The will is complex or contains significant changes from earlier changes without any explanation.

If a will is declared invalid, an earlier will or codicil may be admitted to probate. If there is no earlier will, the person may have died ‘intestate’ (Intestacy).

If you have any concerns about the validity of a will or codicil, our specialist contentious probate solicitors can advise you about this.

Intestacy

What is intestacy?

Intestacy occurs if a person has not made a will or a will is declared invalid and there is no earlier will made by the testator.

In England & Wales, if a person dies intestate, the Intestacy Rules will apply. These rules dictate how the estate will be administered.

Do unmarried couples inherit under the Intestacy Rules?

The Intestacy Rules do not currently make any provision for surviving partners who were either unmarried or did not have a civil partnership at the date of their partner’s death.

However, some cohabiting partners may be able to bring a claim against their partner’s estate for ‘reasonable financial provision’ under the Inheritance (Provision for Family and Dependants) Act 1975.

If you are concerned about lack of provision from an estate, please contact us to arrange a telephone consultation.

Will fraud

Fraud can invalidate wills and codicils. If will fraud is proven, the will or codicil may not be admitted to probate.

Please see our blog on forged wills and probate fraud, where a consultant psychiatrist was jailed for five years for forging an elderly patient’s will.

Common types of will fraud include:

• Will forgery
• Fraudulent calumny
• Will destruction

Will forgery

What is will forgery?

This usually involves:

• Someone tracing or forging a person’s signature on a will;
• Pages of a will being removed and/or substituted to change the will’s contents; or
• Amendments being made to a will after it has been signed, without the knowledge or consent of the person making the will (known as the testator).

What are the warning signs of will forgery?

If the signature on a will does not reflect the testator’s usual signature, this might indicate that the signature has been forged. However, not all changes to a signature are an indication of forgery. Signatures can also be affected by ill health or they may change over time.

Missing page numbers, different fonts or varying margins appearing in a will or codicil may indicate that pages have been substituted and/or replaced.

It is also possible for a testator to unwittingly sign a piece of paper (or even a will), only for text to later be added to the document that the testator has no knowledge of and does not approve.

What is fraudulent calumny?

Fraudulent calumny involves a beneficiary making false representations to a testator (person making a will) about the character or conduct of another potential beneficiary, in order to persuade the testator to change their will.

For example, A and B are beneficences of C’s will. Person A lies to C that person B has stolen from them and person C then excludes person B from their will as a result.

This type of fraud is often referred to as a “poisoning of the mind” (see also testamentary capacity).

Will destruction

If someone deliberately destroys a will or codicil, to ensure that a testator died intestate (without a will) or to allow an earlier will or codicil to be admitted to probate, that is fraud.

If there are any unusual circumstances surrounding the preparation or execution (signing) of a will, you may wish to investigate this further. Our specialist team of solicitors can provide advice about fraud involving wills and estates.

Will construction and rectification

What does will construction deal with?

If there is an error or defect in a will (or codicil) this can usually be remedied by a new will or codicil being prepared.

However, sometimes errors in wills are not discovered until after the person who made the will (known as the testator) has died. This might mean that the will does not carry out the testator’s wishes or it can cause problems for their executors and beneficiaries.

If the words in a will are unclear or ambiguous a court can be asked to determine the meaning of the words. This is known as ‘will construction’ claim.

What is will rectification?

A ‘rectification claim’ can be brought if a will which fails to carry out a testator’s intentions due to either:

• A clerical error; or
• A failure to understand the testator’s instructions.

For example, in the case of Marley v Rawlings [2014] a husband and wife, Mrs & Mrs Rawlings, made mirror wills (wills in identical terms) and their wills were then stored. The solicitor who prepared their wills made an error which meant that Mr Rawlings accidentally signed his wife’s will and vice versa.

Mrs Rawlings died first and it was only after Mr Rawlings died that this error was discovered. His two sons contested the will, as the will left the estate to a third party, Mr Marley.

If the will was invalid because it had not been signed by Mr Rawlings, his sons would inherit the estate under the Intestacy Rules rather than Mr Marley. The Supreme Court found that the execution (signing) of the will formed part of the usual will preparation process and it was therefore a ‘clerical error’, which the court could rectify.

There is no guarantee that a court will remedy errors made in every will or codicil, as each case is dealt with on its own merits. In some cases, other remedies may be required or available (see poorly drafted wills and negligence).

Our specialist will dispute solicitors can advise you about errors in wills or problems with the drafting of the will. Contact us to arrange a telephone consultation.

Poorly drafted wills and will negligence

A will is an important document that deals with someone’s last wishes and how their assets should be distributed after their death. If someone has paid for a will to be prepared, they should reasonably be able to expect that the document will be effective and that it will also carry out their final wishes.

However, because anyone can prepare a will in England & Wales, will services can vary greatly. Poorly or negligently drafted wills can cause a number of problems for executors and beneficiaries of estates.

What problems can occur with poorly or negligently drafted wills?

Common problems with poorly or negligently drafted wills include the person who prepared the will:

• Failing to carry out the instructions of the person who made the will (known as the ‘testator’)’
• Making typographical or other errors which can either prompt will disputes or cause financial loss to an estate;
• Failing to advise the testator about the correct procedure required to sign the will in order to make it valid, or failing to use this procedure e.g. the will is not correctly witnessed; or
• Delaying the preparation of the will, so it is not signed before the testator dies.

When does will negligence occur?

Not every problem with the drafting of a will amounts to negligence and some will drafting problems can be relatively straightforward to resolve.

However, there are cases where negligent will drafting causes a financial loss to beneficiaries or an estate. Solicitors and other professionals will usually have professional indemnity insurance. This means that beneficiaries, potential beneficiaries or an estate might be able to make a claim for compensation.

There are time limits for bringing professional negligence claims (usually six years from the date when the negligence occurs). However, this period can vary in certain circumstances. If you have any concerns about a negligently or poorly drafted will you should obtain specialist legal advice as soon as possible, so that can you can determine the date by which any claim must be issued.

We can advise you about your options and what action can be taken. Contact us to arrange a telephone consultation.