Legal grounds to challenge a Will

There are various grounds to challenge the validity of a Will, including:

  • the deceased person did not have the mental capacity required to make the Will
  • someone coerced the deceased to make the Will
  • the Will was not signed in accordance with the strict legal formalities
  • the deceased made promises that are not reflected in their Will
  • the Will is a forgery

Below we set out in more detail some of the most common grounds to challenge a Will.

Mental capacity

If the deceased did not have the mental capacity required to make the Will, known as testamentary capacity, then it will not be valid.

When the deceased made their Will they should have:

  • understood that they were making a Will and the effect of this when they die
  • understood the extent of their estate
  • understood any moral claims against their estate, and
  • not been suffering from any disorder of the mind that influenced the making of the Will

Lack of mental capacity is one of the most common grounds to challenge a Will. People now live longer and are more likely to suffer from illnesses such as dementia, which can affect their capacity to make a Will.

Lack of knowledge and approval

This is where the deceased did not read, understand or approve the contents of the Will and where it is proved the Will will be invalid.

Coercion

If the deceased was coerced into making a Will that they did not want to make then it will not be valid. This is known as undue influence.

What amounts to coercion varies with the strength of will of the Will-maker. If the person making the Will is elderly, frail and/or vulnerable then less force is required to overpower them.

Will not signed and witnessed properly

There are strict legal formalities that must be followed in order for a Will to be valid. A Will must be signed in the presence of two witnesses, who then sign and complete their details.

If a Will is not signed and witnessed correctly then it will not be valid.

The deceased’s promises

If the deceased made promises to you and you relied on these promises to act to your detriment then you may have a claim against the deceased’s estate. An example of this is if you worked for the deceased for many years for little or no pay because the deceased promised that one day you would inherit their business.

Fraud and forgery

If the Will is a forgery and there is enough evidence to prove this then it will be invalid. It may also be argued that the deceased’s last Will has been suppressed.

Fraud and forgery are serious allegations, so cogent evidence is needed.

Concerns about an executor

The executors or administrators of the deceased’s estate (also known as the personal representatives) are responsible for collecting in the assets of the estate and distributing them to the beneficiaries in accordance with the law.

Unfortunately sometimes there is a breakdown in the relationship between the personal representatives and the beneficiaries. Put simply, you may not believe they are acting in the best interests of the estate and you as a beneficiary.

If there has been a breakdown in the relationship with the personal representatives we can find out what the current position is and advise you on the best way forward. Sometimes it is necessary to apply to the court for the removal of the personal representatives and their replacement.

Preliminary issues

If you think that you might have a claim you should seek legal advice promptly. There are tight time limits for some legal proceedings. In addition it is often beneficial to prevent a grant of probate (or grant of letters of administration) being extracted in the deceased’s estate. This is usually possible if early advice is sought.

The Claim

The vast majority of claims do not reach a final court hearing, where the judge would determine the claim either in your favour by making a financial award or not.

In most claims the parties are able to reach agreement at some point during the litigation process. Mediation and other forms of alternative dispute resolution are encouraged. The advantage of this is that the parties can reach a solution to the claim that is acceptable to them as opposed to having the court impose a resolution. This is generally beneficial for all parties as it saves on costs and emotional distress.

Practical points

Commencing a probate claim is litigation under the Civil Procedure Rules 1998 and your legal representative should have specialist knowledge of conducting these claims.

Early advice should be sought to ensure that you are in the best possible position in making a claim.

It is very difficult to say how long a claim will take, as this depends on the conduct of the other party as well as your own. Some claims can settle in a matter of months whereas others take years.

Costs

Often clients are concerned about how to fund a claim. There are various funding options available depending on if you want to pay on an ongoing basis or enter into a funding arrangement whereby you only pay your legal team’s fees if your claim is successful. We also offer a hybrid option whereby you pay a portion of our fees on an ongoing basis and the rest if your claim is successful. We can discuss the pros and cons of the different funding arrangements with you.

Can we help you? For a free consultation, please contact us on 0113 512 7737 or 0161 241 2062, email stevennewdall@thomasharveysolicitors.co.uk or via the contact page on our website at www.thomasharveysolicitors.co.uk.

Facebook
Twitter
LinkedIn

Leeds

Thomas Harvey Solicitors
Suite 250
Princes Exchange
Leeds
LS1 4HY 

Manchester

Thomas Harvey Solicitors
82 King Street
Manchester
M2 4W

About Us

Thomas Harvey Solicitors is a commercial dispute resolution specialist law firm. We are committed to achieving client-focused outcomes and satisfaction. Our solicitors have over 30 years of experience in handling complex commercial disputes. We provide a premium service that is client-focused, uncompromising, and backed by years of experience and expertise.

© 2024 Thomas Harvey Solicitors is the trading name of Thomas Harvey Legal Limited, a private limited company registered in England and Wales under Company Number 15193370 and whose Registered Office is at Third Floor, 10 South Parade, Leeds, LS1 5QS. Our VAT number is 461 832588

This firm is authorised and regulated by The Solicitors Regulation Authority (SRA) with SRA number 8006820.