From siblings receiving unequal inheritance to money being left to charity, there are a number of reasons why somebody may consider legal proceedings to contest a will – after all, there are often thousands of pounds at stake and mediation, for legal reasons, is not an option.
Whether you’re planning to contest a will and are here to seek advice on whether or not you have grounds to or you want to make sure there aren’t any legal gaps in your own will, this guide to will disputes will point you in the right direction.
What happens if a will cannot be found?
First of all, what happens if somebody dies and you can’t find their will?
Lost wills are not uncommon in the UK, particularly amongst those who opt for DIY will kits rather than a professional service. A will can go untouched for many years, so there is every chance it could go missing or get accidentally thrown away, which is why we recommend liaising with a professional.
If the will cannot be found, the estate belonging to the testator (the person who has died) will usually be dealt with as if they had never written one in the first place. This means that they will have died ‘intestate’, and all of their assets will be dealt with under the UK’s strict intestacy rules.
Dying intestate can cause unrest amongst family members as the distribution of assets is very rarely in-line with what the deceased would have wanted.
Learn more: What to do when someone dies
Disputed wills – Grounds for contesting a will
When looking into whether a will can be disputed, there are a few common scenarios which can automatically provide reasons for contesting.
Lack of testamentary capacity
For a will to be valid, the individual must be of sound mind – if their mental state at the time of writing is deemed to have impacted their decision-making in relation to the will, it can be challenged (however, this can be hard to prove without a professional solicitor).
Disputes surrounding lack of testamentary capacity usually occur when the individual makes changes to a will in their advancing age or when they are suffering from progressive neurological disorders like dementia.
Even if the testator is understood to be of sound mind, there is opportunity for dispute if it can be proven that they were talked or pressured into making a decision regarding inheritance during the process of writing or making an amendment to their will.
Again, this can be hard to prove as the testator is no longer around to defend their decision or admit that they had been wrongly influenced. Any arguments given in court usually have to be of an extra-ordinary high standard to have any hope of being successful.
Negligence/Lack of valid execution
One of the most common cases against DIY wills is that they leave plenty of room for error, given that they are not being overlooked by a trained professional. If a will fails to meet just one of the following requirements, it will be deemed invalid by the court:
- The will must be in writing and signed by the testator (or somebody else in their presence who has been instructed to do so by the testator)
- It must be clearly shown that the testator’s signature was in relation to confirming the will’s contents
- The testator’s signature must be given in the presence of at least 2 other witnesses (at the same time)
- Each of these witnesses must also sign the will and confirm the presence of the testator
Should the will fail to meet these standards then it would not be in accordance with section 9 of the Wills Act (1837) and therefore, deemed invalid. However, unless evidence is presented otherwise, the court will assume that the will has been validly executed.
There are various ways in which a will can be seen as invalid for fraud and/or forgery.
For example, an individual lying to the testator in order to influence their decision when deciding on inheritance would be seen as fraudulent. Forgery is deemed to have taken place when adequate evidence is given against an individual who is accused of amending, writing or signing a will on the testator’s behalf without their knowledge.
Lack of knowledge and approval
The testator of a will must have complete knowledge that it exists and entirely approve of its contents, including how any assets will be distributed amongst relatives.
This can be particularly hard to prove without the testator being around to give evidence themselves, but in extreme circumstances, it can be proved if part of the will is seen to be particularly suspicious by the court.
For example, suspicion may arise if a significant gift is left to somebody unexpected or the person who helped to prepare the will was perhaps a carer or even solicitor.
Rectification and construction claims
If there are clerical errors or ambiguous wishes laid out within a will, it can be disputed on the basis that the action taken does not reflect what the testator would have wanted.
In most cases, the court will be asked to determine the meaning of any unclear wishes outlined in the will, which will then become legally binding.
Reasonable financial provision
If the will in place fails to provide reasonable financial provision for direct family members (such as a spouse or child) or anybody else who has been heavily reliant on the support of the testator, there may be grounds to contest.
Factors taken into consideration here will include the size of the estate left behind, whether or not the testator would have separated from their spouse/civil partner had they remained alive and the physical/mental capacity of the claimant.
What is the best way to write a will?
Many of the disputes against wills are as a result of the document being poorly prepared and written. For that reason, we believe that using an online service is the best and most cost-effective option.