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Contesting the Validity of a Will

When a loved one passes away you will want to be sure that the Will they have left accurately represents their wishes and ensure that you are fairly treated in the distribution of the estate.

In this article we consider how the validity of a Will can be challenged rather than how the distribution of a person’s estate under a Will can be challenged.  Please see our article on the Inheritance (Provision for Family and Dependents) (NI) Order 1979 for claims for certain classes of people who can seek reasonable financial provision from estate where they have not been provided for.

Who can contest a Will.

There are no specific rules as to who can bring a claim against the validity of a Will. However, bringing a claim against the validity of a Will ought to only be brought by those who would benefit if the Will was overturned or found to be invalid. This will usually be the next of kin of the person who has died where there is no previous Will or the beneficiaries under any previous Will.

As an Executor you could find yourself in the position of having to defend against a disappointed beneficiary who has not received what they thought they would from the estate or from a family member or beneficiary under a previous Will where they have not been provided with anything under the latest Will.

What grounds are there for contesting a Will?

The validity of a Will can be contested on a number of grounds. In many circumstances more than one of these grounds may be applicable though it is important not to include grounds which are not relevant.

Lack of Mental Capacity

A common ground is that the person who made the Will did not have sufficient mental capacity to make it. This could include circumstances where a person was suffering from a mental condition or disorder which affected their ability to understand or where the person did not know they were making a Will, did not understand the extent of their wealth being disposed of by the Will or did not understand the nature of the claims that they ought to have considered (e.g. close family members or beneficiaries under previous Wills).

Where a person does not have the requisite capacity to make a Will at the time the Will is made then the Will is invalid.

Lack of Knowledge and Approval

It stands to reason that a person must also have known and approved of the contents of the Will before they sign it. They must understand that the document they are signing is a Will and that they intend for it to be their Will. They must also understand the contents of the Will. Whilst this does not mean that the person must have an intricate knowledge of all the legal jargon involved they must grasp the key points and accept that the contents set out their intentions.

Where a person does not know and approve of the contents of the Will then the Will is invalid.

Improper Execution

Under the law of Northern Ireland a document only constitutes a Will if it is in writing, signed by the person making it (or someone at their direction) and witnessed by two or more people. The statutory requirements for Will making in Northern Ireland are strict in the sense that any deviation from the requirements automatically invalidates the Will. There is no discretion for the Court to consider substantial compliance with the rules.

This ground will usually only be relevant where the Will has not been professionally drafted as the Solicitor who made the Will will normally ensure that it is executed correctly as well. That being said it is certainly possible for the correct formalities not to be followed where the Will is drafted by a solicitor .

Undue Influence

Commonly referred to as ‘duress’ or ‘coercion’ this is a doctrine which allows a Court to overturn a Will on the basis that someone else has influenced the person making the Will in order to obtain some benefit for themselves. There is no requirement that there be any sort of physical coercion but there must be evidence that someone was able to control or manipulate the person into making the Will, that they did in fact control or manipulate the person and that the Will would not have been made without the person influencing the making of the Will.

Typical examples of potential undue influence include cases are where there is a professional  commercial relationship between the person who benefits from the suspicious Will and the person who made it or where one family member or a carer takes control over an elderly relative and manages his/her relationships with other family members and controls access to the relative and inserts themselves into the Will making process.

Fraud and Forgery

Fraud is an exceptionally serious allegation to make and must be substantiated by clear evidence. In the context of Wills it would include circumstances where someone tricks someone else into signing a document without knowing that it is in fact a Will or where a person spreads lies in order to poison a relationship with another relative and ensure they do not receive what entitlement they would otherwise have received  under the Will.

Forgery is a claim brought against a Will where the person who is purported to have made the Will was not involved in the making of it at all and the signature on the Will was forged by someone else.

Are there any time limits?

There are no specific time limits for bringing a claim against the validity of a Will. However, there are a number of reasons why you should act very quickly in circumstances where you have been disadvantaged by a Will and believe there are potential grounds to bring a challenge.

The Executor of a Will is usually required to obtain a Grant of Representation from the Court. This allows him/her to deal with the estate assets and make distributions where the assets are over a certain threshold. Once the Grant is extracted the Executor will be fully able to deal with the assets and distribute them. Whilst it is possible to recover assets that have already been distributed it is much more difficult and you are not guaranteed to recover the assets even if your claim against the Will is strong.

The longer you leave your claim the more likely it is that a Court may consider it to be an abuse of process or a spurious claim and it will be much harder to convince a Judge to overturn a Will where a substantial period of time has passed since the death and where the estate has already been administered.

What can I do now?

There are procedures in place to allow a person to stall the administration of an estate by stopping a Grant of Representation from being issued by the Court until such times as you have had a chance to investigate the merits of your claim. You should seek legal advice as soon as possible in order to instigate these procedures.

The Courts have also been clear that where there is a serious dispute over the validity of the Will the Executors and/or the Solicitors who made the Will ought to provide information contained in the Will file to the person considering bringing a claim. This is to help avoid unnecessary claims being brought to the Court. You should consult a Solicitor as the queries to be raised can have a significant effect on the case overall.

Funding

Legal Aid is available for applicants who meet the relevant financial eligibility criteria and have sufficient merit to their case and at Wilson Nesbitt we are prepared to assess whether you are eligible and make the application on your behalf to get your case up and running as quickly as possible.

We also consider various funding arrangements for those who are not eligible for Legal Aid including monthly billing so you can budget accordingly and after the event insurance to protect against the other party’s costs if you are unsuccessful.

Contact

Contesting a Will or defending against a contest can be a difficult process and requires specialist advice and representation. Whether you are seeking to bring a case or are an Executor who needs to defend a case take the next step and contact our Will, Trust & Estate Disputes Solicitors using our Freephone number 0800 840 9293 or email willdisputes@wilson-nesbitt.co.uk to let us take your initial details and setup a consultation with one of our experts by phone, video conferencing, or face to face consultations in our offices in Bangor or Belfast. Both our offices are equipped with appropriate social distancing measures including protective screens in all our conference rooms.

Get in touch

To find out more about how we can help you with your query, please contact us.