Contesting a Will – Q&A
We are sometimes contacted by people who are surprised and disappointed to have been left out of a parent’s Will and are concerned that the Will may not have reflected their parent’s true wishes.
Partner Jacqueline Penfold considers one such matter and explores the options for people who find themselves in this situation:
Q My dad had dementia and died recently.
Just before he died he made a new Will in which he left his entire estate to someone he only met a few months ago and has made no provision for myself or my sister.
I am concerned that my dad did not understand what he was doing or that his ‘new friend’ influenced the terms of his Will.
Is there anything I can do?
A Yes, there may be grounds to challenge the validity of your dad’s Will and/or you (and your sister) may be able to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 on the grounds that your dad’s Will should have made reasonable financial provision for you.
There are a number of ways in which the validity of a Will can be challenged. These are:-
1. Lack of mental capacity.
Your dad must have been of sound mind (consisting of 3 elements, mind, memory and understanding) at the time he gave instructions for his Will and at the time when he executed his Will. In order to determine this the Court will look at various factors including:-
- Did your dad understand the nature and effect of making a Will. For example, did your dad understand that the Will could be revoked and that it operated only on his death.
- Did your dad understand the extent of the assets he was disposing of in his Will, i.e. did he understand what he owned and how much that amounts to.
- Did your dad understand who he was expected to provide for in his Will. The fact that your dad did not leave anything to yourself and your sister is not a sign itself that he lacked capacity provided he knew of your existence at the time the Will was made and realised he was excluding you both from it after a reasoned reflection.
- Whether your dad was subject to a ‘disorder of the mind’ which influenced his Will. For example, if your dad left a gift in his Will that he would not have done if he was not suffering from such a disorder.
2. Lack of knowledge and approval.
The Court must be satisfied that your dad knew and approved the contents of his Will at the time he signed it. He must have understood the Will, how it operated and approved its contents.
3. Undue influence.
If you can show that your dad was unfairly influenced/coerced in the way he disposed of his assets by his ‘new friend’ you may be able to have to Will set aside. However, these types of claims are difficult to prove.
4. Fraud and forgery.
A Will will be set aside if you can show that the Will has been forged or there has been some fraudulent act.
5. Execution formalities.
There are a number of formalities that must be complied with when a Will is signed, e.g. there are special rules regarding the witnessing of a Will. If these are not complied with the Will may not be valid.
In your case, you may want to investigate your dad’s mental capacity. One of the difficulties with someone who suffers with dementia is that they may understand matters on some days but not on others. It would need to be established that your dad had the appropriate mental capacity on the day he gave instructions for his Will and on the day he executed it.
You may want to ask a medical expert to review your father’s medical records.
You may also want to investigate a claim for undue influence.
Q What happens if the Will is invalid?
A If your dad’s Will was declared invalid then any earlier valid Will would take effect.
If there was not an earlier Will then your father would be deemed to have died ‘intestate’ and the intestacy rules would apply.
Q What happens if the Will is valid?
A If the Will is valid then it may still be possible for yourself and your sister to challenge the Will on the grounds that your father has failed to make reasonable financial provision for you. Such a claim is made under the Inheritance (Provision for Family and Dependants) Act 1975. You can also make a claim under this Act even if the Will is invalid.
If you wish to pursue a claim under the Inheritance Act it is very important you act quickly as there are strict time limits in place for bringing such a claim.
Are there other possible reasons for contesting a Will?
The example above covers just one of many reasons a person might have grounds for contesting a Will. For more information see how can a Will be challenged.
If you would like more advice on these issues, or indeed how you can ensure your Will is written in such a way that it minimises the risk of challenges, please contact Jacqueline Penfold by:
- phone on 01323 727321
- email at firstname.lastname@example.org
- or by using the form below: