Disputing a Will

When a family member dies, emotions run high. Not only is there shock and grief, but the discovery that you have been “cut out” of the Will is sometimes the last straw. Where a financial inheritance is at stake and family members suspect foul play, a small grievance can easily escalate.

You can only dispute a Will after the death of the testator. As well as this you cannot challenge a Will simply because you perceive it to be unfair; you need to have a claim (either that it is invalid as above, or a claim under the Inheritance Act). If the Will is deemed invalid it will be administered under the intestacy rules.

Grounds for a dispute

Normally, the deceased’s estate should be distributed among the different beneficiaries according to the terms of the Will. You cannot generally dispute the will simply because you feel that you should have got more, or that you had been promised a particular item – unless you have a clear legal right to it (such as a contract).

There are, however, a range of grounds on which you can challenge a will and how it is dealt with:

  • The will is invalid for some reason
  • Another beneficiary is not entitled to receive anything
  • You were married to the deceased at the time of death or were financially dependent on the deceased, and the will has not made adequate financial provision for you
  • Assets or debts have been wrongly dealt with
  • The executors are acting improperly in the way they administer and distribute the estate

There are five main ways for a will to be challenged, with additional rights available under the Inheritance (Provision for Family and Dependants) Act 1975, which allows certain people to be given ‘reasonable provision’ from a will.

The challenges to a will are:

Forgery or fraud

A fraudulent or forged Will is not valid and can be contested. Fraud can take a number of forms. For example, you could have been left out of a Will because another person made misrepresentations about you to the deceased. Another example of fraud is where the person who drafted the Will for the deceased left a large portion of the estate to himself without the deceased knowing. Where you suspect there may be fraud the will can be contesting.

Undue influence

The challenge when a third party is considered to have had an excessive effect on the will writer. This challenge is less likely to succeed if the will has been prepared properly by a solicitor and if it can be shown a writer was acting of their own free will.

Testamentary capacity

A successful claim on this ground would show that the will writer did not understand they were making a will, appreciate how much they owned or consider the ‘moral’ claims certain people might have. With an ageing population, this type of challenge is expected to increase sharply. If the will is witnessed by the writer’s doctor it is less likely to be challenged.

Knowledge and approval

A Will can be successfully challenged if a judge believes the writer did not fully understand its implications.

Due execution

A challenge against the proper witnessing of a Will. If a Will is successfully challenged and there is no previous valid will, then intestacy rules apply. Certain people omitted from a will – known as ‘disappointed beneficiaries’ – can make a claim under the Inheritance Act 1975, which says everyone has a moral obligation to look after a spouse, children or other dependants that they have supported in some way for at least two years before their death. In some circumstances, this can include mistresses.

If you suspect a Will is invalid on any of these grounds you should consult our Liverpool based Wills and Probate Solicitors straight away.


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