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What to do if a will is challenged

View profile for Simon Black
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What to do if a will is challenged

Rising affluence has given increased opportunity for individuals to pass on wealth to chosen members of their family. Unfortunately, in our experience, this has also led to a rising number of wills that are being challenged by those either not included in a will or who are to receive what they perceive as a reduced share of the deceased’s estate.

Such formal challenges can present a difficult and costly problem for executors and, if the challenge is successful, may lead to estates being divided in ways not intended by the deceased.

If you are an executor or beneficiary of a will that is challenged, it is important to seek professional advice as soon as possible. In part, this is so that your responses to the ‘challenger’ are framed in a way that avoids inadvertently weakening your position – perhaps by failing to ask the right clarifying questions at the outset or by getting sucked into a highly charged dialogue.

In our experience, there are four main ways that a will might be challenged:

  1. Lack of due execution; for example, the will has not been signed or witnessed correctly
  2. Lack of testamentary capacity; that the testator’s mental state meant they did not have capacity to make informed decisions or understand the effect of those decisions
  3. Lack of knowledge and approval; that the testator was not aware that the will was drafted in the way it appears to have been; and challenges are more likely if the will has been drafted by someone who will take benefit from it.
  4. Undue influence; which involves coercion or manipulation applied by a potential beneficiary resulting in the will not reflecting the testator’s true intentions and wishes

Homemade wills or those drafted by unregulated ‘will writers’ are usually more susceptible to challenge because they may not be correctly drafted in accordance with the strict statutory requirements and unlike those drafted by regulated solicitors, may lack detailed contemporaneous notes which often become important evidence when there is a dispute.

Where a will is successfully challenged, the Court will hold the will invalid resulting in an estate being divided up either in accordance with a previous will or by the ‘laws of intestacy’ (which apply if there is no previous will). Furthermore, legal costs can be payable out of the estate to the challenger in the event that the testator themselves have caused the litigation.

So it is really important to take any will challenge seriously and, following the guidance of a solicitor specialising in ‘contentious probate’, gather the evidence that can help rebuff the kinds of challenges outlined above.

A final point to make is that claims can also be brought against an estate under the Inheritance Act 1975 by certain categories of potential dependants. Such claims have to be made within 6 months of grant of probate and usually arise where a particular dependant, usually an adult child or step-child, argues that a testator’s will has not made adequate financial provision for them. We will make such claims the subject of another article shortly.