How to protect your Will from being contested

We are seeing an increased number of clients wishing to contest Wills of family members and clients being concerned that their Will may be contested by someone after they have died.

Grounds for contesting a Will

You cannot contest a Will simply because you don’t like it or don’t agree with what the Wills says. You have to have valid legal reasons to contest a Will. The main grounds for contesting a Will are:-

1. Lack of testamentary capacity – the test for capacity was laid down in the case of Banks v Goodfellow 1870 which states that for a Will to be valid, the person must:

• Understand that they are making a Will and the effect of that Will;
• Know the nature and value of their Estate;
• Understand the consequences of including or excluding certain people under their Will, and
• Not be suffering from a ‘disturbance of the mind’ which may influence their views

2. Lack of valid execution – for a Will to be valid it must meet the requirements set out in section 9 of the Wills Act 1837, which states that:

• The Will must be in writing and it must be signed by the testator or someone at the direction of the testator;
• It must appear that the testator intended their signature to give effect to the Will;
• The testator’s signature must be made or acknowledged in the presence of at least two witnesses who must subscribe their signature, name and address;

3. Lack of knowledge and approval – a testator must know and approve the contents of their Will. If the Will has satisfied the valid execution requirement at point 2 above then it must be shown that the Testator lacked knowledge or understanding of the content of the Will of that there are other suspicious circumstances. The person making the claim must show evidence of the Testator’s lack of knowledge and approval.

4. Undue influence – this is the most difficult allegation to sustain since the primary witness – the Testator – is not able to give any evidence. To prove that the Testator was unduly influenced, coerced or under duress at the time of making the Will, you must show ‘actual undue influence’ with significant evidence.

5. Fraud or forgery – you are able to contest a Will if you believe that the signature has been forged or obtained as a result of fraud but, again, this is very difficult to prove and significant evidence will be required to run this claim successfully.

How do you protect your Will from being contested

There are steps you can take to protect your Will from being contested.

• If there is any uncertainty over your capacity, perhaps because you have a diagnosis of dementia, or you elderly, it is helpful to have a letter from your GP or doctor which states that you have testamentary capacity. This will be very strong evidence to prevent a claim on the basis that you didn’t have capacity at the time you made your Will. The letter can be stored with your Will.
• If you are excluding members of your family from your Will such as a child you haven’t seen for a long time then prepare a detailed letter setting out the reasons for this. The letter can then be used to explain your thought process and can be disclosed to the court in the event of a claim. This letter is private so it can include all the different reasons you have taken into account when making your decision.
• Make your Will as simple and clear as possible so that there is no ambiguity over what you mean.
• Take steps to minimise the possibility that someone may say that you were unduly influenced – for example speak to the solicitor about your Will personally as opposed to getting someone else to call on your behalf, come to the appointment by yourself, meet the solicitor in private to give the initial instructions and when you sign, without anyone else being present especially anyone who is benefiting under your Will.

If you have any questions and would like to speak to one of our experts call 01908 689341 or email dkulczykowska@geoffreyleaver.com.

Dagmara Kulczykowska | Partner