A Will is created to ensure that once someone dies, their Estate is given to the people who meant the most to them. However, the inheritance process doesn’t always go the way it should and in times like these, it helps to understand the process for contesting a Will.
The process is notoriously demanding because it takes valuable time, money and can be emotionally exhausting. If you plan to contest a Will, then you should seek sound legal advice that will be able to spearhead your challenge.
Where to Start
Before you begin you need to make sure your reason to contest the Will is legitimate. Unfortunately, there’s nothing you can do legally if you’re not happy with the will so you must have reason to believe that something is amiss.
From a legal standpoint, the only grounds for contesting a will are:
- Demonstrating Undue Influence – Proving there was some form of coercion, manipulation, deception or intimidation
- Proving a Lack of Testamentary Capacity – Demonstrate that the Testator did not understand what they were doing when the Will was written.
If you believe that you can prove either of these, then you probably have a strong case on your hands.
If you believe the Testator was forced to include something into their Will then you may be able to prove undue influence. Courts can throw out Wills if they believe the writer was influenced through physical violence, threats or deception.
However, you must distinguish between undue influences and simply appealing to the Will maker’s sentimentality. While the thought of someone trying to appeal to the Testator’s goodwill may make you shudder, emotional influence is completely legal.
For the undue influence to be successful there has to be proof of coercion, whether it be violent, threatening or done during a lack of Testamentary capacity.
Lack of Testamentary Capacity
If you believe the Testator was in no condition to be creating a Will, then a Testamentary capacity case will determine if the person understood:
- The effect of the Will
- The amount of their Estate they were giving away
- The expectations of others
This can be difficult, as you have to prove the person was not mentally capable. Evidence of this can only be obtained through a medical or psychiatric assessment that takes into account evidence from witnesses close to the Testator at the time. Based on the expert’s opinion, a decision can be made about the state of the person when they wrote their Will.
In order for the lack of Testamentary capacity claim to be successful, you must prove that the will maker had their affections, loyalties or moral compass affected by either illness or any subsequent medication.
Challenging a Will shortly after a loved one has passed away can be incredibly stressful for everyone involved because it interrupts the grieving process. A dedicated Solicitor can make the process much easier and make sure you understand every option.