Worried your loved one’s wishes aren’t being carried out? Read our expert guide to contesting a Will

The loss of a loved one is always a difficult time. Even more so if you believe their wishes are not being carried out as expected.

In this article, we explain how to challenge the validity of a Will in Northern Ireland and what to do next if you think you have a claim. 

Who has Legal Standing to Challenge the Validity of a Will?

Whilst there aren’t any rules on who can contest the validity of a will, only those with a legal interest in the Will (e.g. someone who would benefit if the Will was overturned or declared invalid) should contest its validity. 

This will normally be individuals who aren’t receiving what they expected from the deceased person’s estate, such as next-of-kin who were not aware there was an existing Will or beneficiaries of a previous Will who are no longer benefitting under the new one. 

Under the legislation, there are classes of people who can potentially bring a claim where they have not been provided with reasonable financial provisions by the person who has died. These classes of people are:-

• The spouse or civil partner of the person who has died;
• A former spouse or former civil partner of the person who has died;
• Any person living in the same household as the person who died for at least 2 years prior to the death where they have been living together as if they were husband and wife or as if they were civil partners albeit that no marriage or civil partnership ever took place;
• Any child of the person who died including minors, adults and adopted children;
• Any person treated by the person who died as a child of the marriage or civil partnership to which the deceased was a party (e.g. step-children, fostered children or potentially grandchildren raised by their grandparents); and
• Any other person who was being maintained by the person who died immediately before the death.

How to Dispute a Will: The Legal Grounds you need to Challenge a Will

In Northern Ireland, you can contest the validity of a will on five grounds. More than one of these may be applicable; however, it’s important to only use the ones that are relevant. 

1. Lack of Mental Capacity to Make a Will 

One of the most common grounds for contesting a Will is that the person making it (the testator) didn’t have sufficient mental capacity to make it. 

This will usually be where the person making the Will suffers from a mental condition or disorder that affects their ability to understand, such as Dementia. 

To contest the validity of a Will due to lack of mental capacity, you must be able to show that the person who made the Will did not have sufficient mental capacity to understand what they were doing and the consequences of their actions. 

You would need to show that the person:

• Didn’t know they were making a Will 
• Didn’t understand the amount of wealth being disposed of by the Will; or 
• Didn’t consider the potential claims that could be made (such as by close family members or beneficiaries under previous Wills) 

2. Lack of Knowledge and Approval of the Contents of the Will 

Even with sufficient mental capacity, the person needs to have known and approved of the contents of the Will before they sign it. This means that: 

• They must know that what they’re signing is a Will
• They must intend for it to be a Will; and 
• They must understand the contents of the Will 

So, whilst an in-depth understanding of the law isn’t necessary, the person must know and approve of the contents and be aware of the effects of the Will. 

3. Improper Execution of the Will

Under The Wills and Administration Proceedings (Northern Ireland) Order 1994, a document is only a formal Will if the statutory requirements are met. 

These are that the document must be:

• In writing 
• Signed by the person making it (or by someone at their direction); and 
• Witnessed by two or more people 

These rules are strict and there are no discretionary powers for the court to consider overall compliance with the rules. Any deviation from the requirements automatically invalidates the Will. 

This ground is usually only relevant where the Will wasn’t drafted by a professional; however, it’s still possible for a professionally drafted Will to not meet the requirements. 

4. Undue Influence over the Creation of the Will 

To rely on undue influence as the grounds to contest a Will, it must be shown that someone else has coerced the person making it in such a way that they benefit from it themselves. 

There doesn’t need to be any sort of physical coercion or duress, but there must be evidence that the person was able to, and in fact did, control or manipulate the person into making a Will that wouldn’t have been made otherwise.

Typical examples of undue influence include commercial relationships between the coercer and the person making the Will or someone caring for an elderly person who controls their affairs and inserts themselves into the will. 

5. Fraud and Forgery in Relation to the Will 

Contesting a Will on the grounds of fraud includes obvious situations, such as someone tricking another person into unknowingly signing a Will, alongside less common circumstances, such as a person spreading lies about a beneficiary to damage the relationship between them and the testator so that they don’t benefit. 

Forgery as the basis for contesting a Will arises in situations where the person who is purported to have made the Will wasn’t in fact involved in the making of it, and the signature on the will was forged by someone else. 

Given the seriousness of these grounds, claims of fraud and forgery must be substantiated by clear evidence. 

What are the Time Limits when Contesting a Will in Northern Ireland?

In Northern Ireland, there are no specific time limits for bringing a claim against the validity of a Will, but it’s important to act fast if you believe that you have grounds to challenge it. 

This is because once the Executor obtains a Grant of Representation from the court, they can begin to deal with and distribute the estate assets. It’s more difficult to recover assets that have already been distributed, even if your claim is strong, so it’s important to try to bring your challenge as soon as possible. 

There is also the risk of your claim being considered a spurious one and an abuse of process if you leave it too long between the administration of the estate and bringing your challenge. 

Next Steps: How to Begin a Claim to Contest a Will

Given the complex nature of contesting the validity of a Will, the first step is to seek legal advice as soon as possible. In the first instance, a solicitor can help you halt the Grant of Representation so that there’s sufficient time to investigate the merits of your claim.

The courts in Northern Ireland have also required Executors to provide you with all the information contained within the Will file to avoid unnecessary claims. Your solicitor will examine this information to ensure your claim is valid and the correct queries are raised. 

Speak to us Today 

Contesting a Will or defending against a contest can be a difficult process and requires specialist advice and representation. 

Contact Daniel McCracken, senior Will, Trust & Estate Disputes solicitor on our freephone 0800 840 9293 or email willdisputes@wilson-nesbitt.co.uk. 

We offer flexible consultations by phone, video conference or face-to-face in our Belfast and Bangor offices.  

FAQ’s

Can you View a Will Online in Northern Ireland? 

There is a public calendar of Wills held by the Public Record Office of Northern Ireland, but entries are only available once probate has been granted. Before probate has been granted, only the executors of the Will are entitled to view it and have discretion as to whether or not non-executors can view the Will. 

Who Contacts the Beneficiaries of a Will? 

The executors are responsible for contacting all beneficiaries of a Will. Where beneficiaries are difficult to find, executors may instruct specialist service providers to help track down the missing beneficiaries. 

How Much Does It Cost to Make a Will in Northern Ireland? 

At Wilson Nesbitt, a standard single Will costs £240 including VAT. A standard mirror Will for couples costs £420 including VAT. For complex or unusual Wills, additional charges or services may apply depending on your requirements. 

Can you Write your own Will in Northern Ireland? 

While there are no rules preventing you from writing your own Will, it’s advisable to use a solicitor to draft your Will as the legal formalities required are strict and complex. Writing a Will without specialist help could result in an invalid Will or issues with inheritance tax for your loved ones.