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.

Undue Influence

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.

To arrange a dis­cus­sion about a new or exist­ing Will, please get in touch with Paul Clark on 01625 523988 or mail@​JBGass.​com