CHALLENGING A WILL

There are five main reasons for challenging a Will:

1. The Will is invalid.

• For a Will to be valid it must be signed by the person making the Will in the presence of two witnesses (neither of whom can be beneficiaries under the Will).
• If there is evidence to suggest that any of these conditions have not been met, then it is possible to contest the Will as it would be invalid.

2. The person providing the Will lacks ‘capacity’.

• A Will can only legitimately be made by an individual who understands the significance and the consequences of making one.
• This means they understand how their estate will be distributed and who will benefit after they have died.
• It ensures that a Will was made by an individual who was in a competent mental state and, if there is any doubt, that it can be challenged.

3. Undue Influence.

• Undue influence may arise when someone has put pressure on the person writing the Will to include clauses or bequests that they would not have included if they were writing the Will free of any outside influence.
• As well as being mentally competent, the Will maker needs to make decisions by themselves and without any coercion. If someone else – whether they are a beneficiary of the Will or not – tries to pressurize the Will maker to change the contents of a Will, it can be justifiably challenged.

4. Financial maintenance.

• If an individual was financially dependent on the deceased when they died, then it may be possible for them to challenge the Will if they think that the Will doesn’t make adequate provision for them.
• To do so they must meet the following two conditions: (a) the claim must be made within six months of the Grant of Probate being issued; and (b) the claimant must be a spouse or civil partner, a former spouse or civil partner who has not remarried, a co habitant who had lived in the deceased’s house for two years prior to their death, offspring, or any other individual who has financially maintained by the deceased before their death.

5. Fraudulent Will.

• A Will can be challenged because of doubts over the legitimacy of the Will or a signature. If the Will itself or a signature may have been forged, it is open to the challenge.