HOW TO CONTEST A WILL: A GUIDE
The following are questions that we are frequently asked regarding contesting a Will.
If you are unhappy with a Will, you may be able to contest it.
On this page, we set out how to contest a Will – from establishing whether or not you have a claim, through to the steps you’ll take if your claim goes to Court.
We strongly suggest that you get expert legal advice from a qualified lawyer experienced in this area of law, before you take any further action. They will be able to advise you whether you have a claim, whether there are alternative claims you might not have thought of with a higher chance of success, and whether it would be financially viable to start the process of making a claim given how much you are likely to recover.
Q: Is there a potential claim?
There are many grounds on which you can contest a Will. These include:
Lack of testamentary capacity:
The tests for capacity are set out in Banks v Goodfellow (1870). Where a Will appears, on the face of it, to be in order and rationally made, there is a presumption that the Testator had the required capacity to make the Will unless there are circumstances to cast doubt on its validity. However, if the will is defective, if there is evidence of confusion on the part of the testator or a history of memory loss or other mental problems, the presumption is reversed. In those circumstances, those seeking to rely on the Will must demonstrate, on the balance of probabilities, that the Testator was mentally capable of making it.
If the Will in question appears to comply with Section 9 of the Wills Act 1937, it will be assumed to express the wishes of the Testator’s, unless there is evidence of fraud or undue influence. If it is claimed that the Testator was unduly influenced, the burden of proving this is on the person(s) asserting it. This can be quite a difficult burden – it is not good enough to show that the person was vulnerable and suggestable, and thereby merely presume that undue influence took place. Where undue influence is alleged, it must be positively proved (Hubbard v Scott; Cowderoy v Cranfield). Examples of successful undue influence cases include Killick v Pountney (where the major beneficiary was ‘around’ when the instructions for the Will were given), Schomberg v Taylor  and Schrader v Schrader. Note that it may be easier to make a different type of claim in these circumstances. For example, if a beneficiary prepared the Will or was instrumental to the process, if there is no strong evidence of coercion, a claim could alternatively be made on the basis of lack of knowledge and approval of the contents of the Will (Wyniczenko v Plucinska-Surowka ).
Section 9 of the Section 9 of the Wills Act 1937 as amended by Section 17 of the Administration of Justice Act 1982 set out the requirements for a valid Will.
Clerical errors or drafting ambiguities:
Sometimes, where a Will is prepared by a solicitor or lawyer, clerical mistakes are made. This happened in Marley v Rawlings  when Mr and Mrs Rawlings were each given the other’s Will to sign. Other times, a Will is drafted in such a way that the Testator’s intention is not clear from the wording – even though their instructions were perfectly clear. In ‘rectification’ or ‘construction’ cases like this, the Court will look at all the available evidence and make a ruling.
Lack of knowledge and approval of contents:
Where a Will is properly executed, it is presumed that the Testator had full knowledge of its contents, of which he approved. If there are grounds for suspicion that the person making the Will did not know and approve of its contents, the person who puts forward the Will must produce evidence that they did.
This grounds for contesting a will is rather like coercion but there are some differences. It is in fact a type of fraud. Typically it will involve person A poisoning the Testator’s mind against person B, resulting in the Testator writing Person B out of their Will, or reducing their inheritance. The elements required to prove fraudulent calumny were identified in Re Edwards : “The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone.” In this case, Lewison J accepted that one son had deliberately poisoned his mother’s mind by making deliberately untruthful accusations against his brother and sister-in-law.
If it is known that the Testator had a Will in their possession which cannot be located after their death, a presumption exists that they destroyed it in order to revoke it. However, as set out by Rimer J in Wren v Wren , it is merely a presumption and it is open to parties to adduce evidence rebutting it, ie evidence pointing to the higher probability that any loss or destruction of the will was accidental and was not accompanied by any intention on the testator’s part to revoke it.
Reasonable financial provision:
If the Deceased left you out of their Will or made a smaller gift than expected, you may be able to claim for ‘reasonable financial provision’ under the Inheritance Act. Only certain people can bring a claim and there are strict time limits.
Note that the above is not exhaustive – there are more grounds for contesting a Will.
The next steps
Once you have established that you may have grounds for a claim, it is essential that you get expert legal advice from a solicitor qualified and experience in this area of law. They will be able to advise you on:
- Which claims you have – there may be one or more
- The prospects of making a successful claim
- The costs of making a claim
- The time limits for making a claim
- Taking immediate necessary steps, such as entering a Caveat
Note that you should not delay in seeking advice, even if the time limit for contesting a Will on the grounds you have identified appears to be generous. The principle of laches holds that relief must be sought promptly and even in cases of gross fraud, a delay can mean that the Court may not accept your claim.