Contesting a will

18th April 2019

If you are a beneficiary of a Will which you believe the deceased was put under pressure to sign and you wish to contest the Will read on for some sound initial advice.  

It is not uncommon for loved ones that thought they would be included in a Will to be disappointed when they discover they are not, or find out they are receiving less than they had expected.

Occasionally there are circumstances surrounding how a Will was made, or the content of a Will, that arise suspicion and uncertainty amongst beneficiaries. For example, an unexpectedly large gift to a surprise beneficiary or a new Will being made just before death. This often leads to the beneficiaries investigating how the Will was made.

When a person wishes to challenge the validity of a Will the burden of proving wrongdoing rests with that person and it can be extremely difficult to prove that the deceased’s decision-making process was undermined or influenced by another person as the key witness is, of course, the deceased. Typically, to successfully contest a Will on the grounds of undue influence, you will need to prove coercion such as physical violence (forcing someone to sign a Will) or verbal bullying (pressurising a person to change their Will).

In the absence of sufficient evidence to prove undue influence, you may wish to consider whether there are alternative claims that could be made against the estate. For example, unexpected omission of a gift to a close family member could lead to a claim that the deceased did not fully understand or approve the contents of the Will. Likewise, if there is a question mark over the will-maker’s mental capacity at the time of making the Will it could give rise to a claim.

If you genuinely believe that the deceased was coerced when making their Will you should advise the executors immediately. If probate has not yet been obtained it is possible to apply to the Probate Registry to temporarily stop it being granted. This will prevent the executors from distributing the deceased’s assets and will give them time to consider your potential claim and investigate further. If probate has already been granted you may need to take formal legal action to make a claim against the deceased’s estate. Where a court decides that a Will is invalid, if there is not an earlier valid Will, then the deceased’s estate will be distributed according to the intestacy rules.

Court proceedings of this nature can be complicated and it is crucial to seek expert legal advice on the merits of your potential claim prior to taking court action.

Should you require further information please contact our Litigation department.