In the event of a family member's death and a disagreement over the contents of their will, it may be possible to contest it. Contrary to popular belief, a will is not always indisputable once it has been written. However, there are legal requirements that must be met in order to challenge or contest it. Seeking legal advice is the first step in this process, as it can help determine whether the time and expense of contesting the will is worthwhile. In addition, there is usually a time limit specified from the Grant of Probate for this type of procedure.
Contesting a Will: What you Need To Look For
There are several legal grounds that must be met to contest a will. These are outlined below:
Lack of Due Execution: This refers to situations where the will fails to meet specific criteria during its creation. These include:
- The will must be in writing, and the testator (the person who makes the will) is required to sign it or ask someone else to do so in their presence.
- The testator must have a clear intention to sign the will with its contents.
- The signature of the testator can only take place if two witnesses are present at the same time.
- Each witness must either attest and sign the will or acknowledge the signature in the presence of the testator. This does not need to occur with any other witnesses present.
- Witnesses must be at least 18 years old and cannot be left anything in the will they have witnessed, nor can their married partners.
It is often challenging to find adequate evidence to contest the contents of a will based on lack of due execution.
Undue Influence: This is a more common reason for challenging a will, and it involves proving that the testator was coerced, manipulated, deceived, or intimidated by someone into writing the will in a way that benefits the person exerting the undue influence. Examples of undue influence include threatening behaviour, physical violence, confinement of the testator, or deception. Emotional persuasion, such as asking to be rewarded for helping with home-based chores or acting as a companion, is not considered undue influence.
When determining whether the testator was coerced into writing a will that benefits a specific person, the court has the final say in determining whether the testator's actions were influenced by undue influence.
Lacking in Testamentary Capacity: When a valid will is created, the person creating it must be of "sound mind" at the time. This means that they must understand that the will is being prepared, the consequences of the will, the full value and contents of their estate, and the implications of including or excluding specific people in the will. They should not be affected by any mental disorders that could affect their actions.
In order to use any of these factors as grounds for contesting the will, there must be sound evidence, such as psychiatric or medical assessments, indicating that the testator was not of sound mind when the will was created.
If you're in a fix regarding a will and want to prevent anyone from contesting it, you need solid legal advice. Contact Curtis Legal Ltd today to find out how to properly draft a will to prevent such circumstances. Call: 0800 214216
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