Contesting a Will – How Difficult Is It?

Questions about contesting Wills regularly come up at our seminars and workshops and one of the most common queries is how difficult is it to contest someone’s Will?

A disgruntled relative might think a Will is unfair but that doesn’t necessarily mean they’re going to be able to successfully challenge the Will.

There are only certain specific grounds for contesting a Will; either the Will was made as a result of ‘undue influence’ or there was a lack of mental capacity or there is a problem with the Will document.

Undue influence

If someone wants to rely on the ground of undue influence to contest a Will they need to be able to show that the deceased, when he or she made their Will, was forced due to threat or extreme pressure into making a Will that wasn’t the Will the deceased person really wanted to make.

You’ll appreciate that it’s usually very difficult to show that pressure was put on the Testator to make a Will that went against their own wishes, but it may be possible to show that there were suspicious circumstances which could suggest the Testator may have been subjected to undue influence.

Lack of Mental Capacity

It is a fundamental principle that a person when they make their Will must be able to understand the assets he or she owns or controls and they must have an appreciation of the obligations they owe to others and have an understanding of the Will document and what the effect of it is going to be.

There is a presumption in law that everyone has mental capacity unless there is evidence to suggest that they don’t. So if a person had been diagnosed with a form of dementia or had suffered a brain injury prior to making their Will, although this in itself is not conclusive evidence of lack of mental capacity, it can have the effect of shifting the burden of proof on to the person (usually the executor) who claims the Will is valid.

Problems with the Will

There are strict statutory rules about the way in which Wills must be signed and witnessed and there are rules about making alterations to the document. There are also some circumstances which have the effect of revoking a Will or part of it automatically – for example if the Testator marries after having made a Will.

If the rules about the construction of the Will document are not followed correctly this can result in the Will being invalid. So this ground for contesting a Will might be relied on if the person who wants to challenge the Will has reason to believe that the Will was not signed or witnessed in the correct manner or if the Testator accidentally revoked the whole or part of the Will and this didn’t come to light until after their death.

Empty Threats?

Disgruntled relatives often make threats about contesting a Will but unless they can provide the court with evidence of one or more of the specified grounds for challenging a Will, they are unlikely to get far in having the Will set aside.

Nevertheless people who try to contest Wills can cause a lot of delay and additional expense during the administration of the deceased person’s estate, as they try to gather evidence to support their case.

There are various steps that can be taken to discourage attempts at contesting a Will and these and many other tips and solutions are offered in our Wills and Probate Workshops.

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