Most people think once they make their will, that’s the end of it. However, after you’re gone, someone might decide that they are not happy with the provisions and go to court to contest your will. That’s why it’ important that you try to get it right and get professional advice if possible, to avoid some of the common traps people fall into with their wills. Some of the most common reasons why wills are challenged are:
Failure to sign the will correctly
Known in the profession as lack of proper execution, this has to do with whether or not your will was signed in accordance with the rules regarding the signing of wills. Under English law, for your will to be valid, it must be signed by you in the presence of two witnesses, and those two witnesses must also sign your will in your presence.
Not having the correct attestation
When you sign your will, the part where you sign tells the story of who was there when you signed and any other information regarding how the will was signed. This is called the attestation clause, and it is an important part of the will. An attestation clause is usually accepted as evidence of the way in which the will was signed, and unless there is proof to the contrary, what it says will be accepted unless there is evidence to the contrary. It will usually say that you signed your will in the presence of two witnesses and that they signed in your presence. This can be modified, for example, if you cannot read or see and the will had to be read over to you. Also, if you cannot write and someone had to sign on your behalf and on your direction.
Lack of testamentary capacity
When someone is suffering from a disease of the mind that leads to a lack of mental capacity to make a will, the person is said to lack testamentary capacity. This is one of the top reasons why people challenge the wills of the elderly. This is not surprising considering that according to the Alzheimer’s Society, one in six people over the age of 80 years have dementia. That means that the wills of many people over that age could be challenged. The fact that someone is suffering from dementia does not necessarily mean they lack the mental capacity to make a will. The issue is whether or not the dementia has affected their ability to make and understand the will.
Anyone who is in that situation wishing to make a will must get professional advice.
Lack of knowledge and approval
For a will to be valid, the testator must know, understand, and approve of the contents of the will. If, for any reason, it can be shown that there was a lack of knowledge or approval of the will by the testator, then the courts will not allow the will to stand.
Sometimes, the issue of lack of knowledge and approval may be connected with the ability of the testator to communicate their approval of the contents of the will such as where the person is sight-impaired.
Fraud is often alleged when wills are challenged. The common reason for allegations of fraud is what is known as “fraudulent calumny”. This is when someone makes false allegations about someone that encourage you to exclude that person from your will. It is about someone deliberately poisoning the mind of the testator with the intention of influencing them to either exclude the beneficiary or reduce the gift to the beneficiary.
Undue influence is much more difficult to prove than fraud, but it is often used as grounds to challenge a will. In fact, very often, those disputing the validity of a will allege both fraud and undue influence on the basis that if they fail on one ground, they might be successful on the other. Whilst fraud is about gentle persuasion, either by one big lie or a drip-drip approach, undue influence is quite different. It is more about coercion or use of force. That makes it much more difficult to prove and, therefore, less likely to succeed.
Wills are sometimes challenged on the grounds that they are forgeries. Having your will professionally drawn up usually helps to dispel any such suspicions.
Family provision claims
Certain categories of family members and dependants are allowed to make a claim for family provision from your estate on the basis that they have not been sufficiently provided for in your will or as a result of your intestacy (if you didn’t make a will). This is fast becoming a major growth area for probate claims.
People will also challenge a will when they have been promised an inheritance that does not come to be. If you have been telling your niece that she will get your house after you are gone, you had better make sure to include that provision in your will, or she is likely to bring a claim against the estate on the basis that you had promised her the house. This is an area of law known as constructive trusts and is another probate claim growth area especially in relation to farms.
Mutual wills are quite different from mirror wills, which is when couples make wills on similar terms. Mutual wills create a legal obligation on the couple. When two people make mutual wills, after the first person dies, the survivor is legally bound by the terms of that mutual will and they cannot change the terms. Some people have challenged wills on the basis that they were intended as mutual wills and that the survivor was bound by the provisions.
These are some of the most common reason why people might want to challenge a will. Contact us if you want advice about the situation that you’re in and to find out your chances of success before you go to court to challenge a will. You can do so for a fixed fee and save money by finding out before launching legal action. You can also contact us for full advice on making a will that will be effective and more likely to stand up to legal challenge.