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Contesting A Will

Our specialist solicitors are disputed probate experts who can advise you on how to contest a will. There are many ways in which a third party or an aggrieved beneficiary can become involved in contesting a will. The rules and regulations and statutory requirements that must be complied with in order to execute a valid will that distributes all of the assets of the testator in the way in which was intended are legion. Solicitors are constantly reminded of the inadequacies of other lawyers but most often in the inadequacies of do it yourself wills when they are instructed to deal with a badly drafted will that does not have the effect that the deceased person intended.

When considering how to contest a will an aggrieved third party will first consider whether or not the requirements for execution of the will have been complied with in full. There are no half measures here and the will is either legally executed and is valid or it’s imperfect and thereby invalid. If that is the case then an earlier will may take precedence or if there is no earlier will or no earlier valid will then the intestacy rules take precedence and in that case if there are no surviving relatives that comply with the statutory requirements then the state can step in and claim the entire estate.

In the case of a DIY will the question of how to contest a will can often be answered by simply considering the execution of the dcument. The first place that a lawyer who is minded to get involved in contesting a will looks on behalf of a client is at the actual signing and witnessing of the will. In order to be a valid will the following conditions must be fulfilled :-

• the document must have been made by or for an adult which for the sake of the law means a person over the age of 18 years
• the contents must have been dictated by the testator of their own free choice and there must have been no undue influence which includes any form of threat or coercion from any other person
• the person giving instructions or compiling the document must not be mentally incapacitated to the extent that they were not fully aware of the meaning of the document
• The document must be signed by the testator in the presence of two witnesses who must also sign. Alternatively the testator, who may have previously signed the document, must acknowledge his signature in the presence of two witnesses who must then sign the document in the presence of all three.
• A beneficiary should not witness the document or they will lose their bequest but the remainder of the document will be valid and enforceable.

It does sometimes happen that a testator does not make any provision for a dependent and in this case a dependent would be perfectly entitled to consider contesting a will to make personal provision for their needs in the same way that the testator provided prior to death. Beneficiaries who object to provision for a valid dependent would do well to take detailed legal advice as claims for beneficiaries are often successful.

In the case of a lost or accidentally destroyed will the assumption without proof to the contrary is that the deceased testator deliberately destroyed the will prior to death with the intention of positively revoking the document. This assumption can be challenged in the high court by potential beneficiaries who may be in possession of a copy and may be able to prove actual loss or accidental damage.