In the UK, the amount of people who have contested a Will has increased by more than 80% since 2019. The process of contesting a Will is known as Contested Probate and occurs when somebody believes there is an issue with a Will and requires it to be amended. This process can occur through negotiation or through litigation, it can also be a very emotional area of law due to the issues involved.
Reviewing documents left behind by the deceased can be a very sensitive and upsetting task, especially if you feel as though it does not accurately reflect the deceased’s wishes. There are many circumstances where family members and close friends feel that the Will left behind does not accurately reflect the deceased's wishes and current state of mind which result in the will being contested.
Before considering contesting a Will, some elements should be assessed. Not only can this be an extremely costly and lengthy process, but if the Will is in writing or signed by a testator, then the Will will be considered valid except in exceptional circumstances.
1) Mental incapacity
If the individual who created the Will was not mentally capable of understanding what the document authorises, grounds for contesting are presented. As of April 2017, for this clause to be used, acts 1-3 of the Mental Capacity act 2005 are to be asked.
If this is the reason why an individual would like to challenge a Will, there will need to be legitimate documented evidence that the deceased suffered from mental illnesses from a medical professional. Seeking the assistance of a legal expert from the outset will ensure the process runs smoothly.
2) Lack of understanding
A Will is a legally binding document and has the power to make decisions for an individual once they have passed. Due to the nature of the document, it is crucial that a complete understanding of what is being asserted by the individual is present. If the understanding of what is being asserted is compromised, this presents grounds for contesting the Will.
Suppose the individual is visually impaired, has a limited level of literacy, has hearing or speech impediments, or is vulnerable due to being frail or unwell. The Will constructed could be successfully contested.
3) Undue Influence
When the testator creates the Will, if there is proven coercion or undue influence, the Will will become invalid. This is when an individual has been pressured to change the document or add individuals against their wishes.
This clause is incredibly hard to prove as the act of pressuring someone to change the document is usually done in private or unbeknownst to others.
4) Fraudulent circumstances
Will forgery is a crime that has become popular and has seen a 30% increase in cases since 2014. A Will falls into this category of fraud if the signature or handwriting does not match the deceased's.
While the handwriting of a loved one might be easy to detect, some professionals have mastered the art of imitating handwriting to perfection. Looking out for any anomalies in the handwriting or inconsistency in the signature are key indicators that the document might be fraudulent.
Recertification is when there has been a mistake in documenting the wishes of the deceased.
When calling on recertification as your grounds for contesting a Will, looking over the solicitors' notes leading up to the drafting of the Will is crucial to allow the recertification process to have substantial grounds to reassert the deceased's wishes.
Seeking the legal advice of an expert can eliminate any possible foul play and ensure that the matter is handled with sensitivity and efficiency during this challenging time.
At Jarmans Solicitors, we pride ourselves on providing expert Probate legal services and can assist you when attempting to contest a Will. We will go above and beyond to ensure that your case is handled with accuracy and care.
Please note that each case is different, and while we outline a general overview, each matter is subject to circumstance.
6) Inheritance Act
In 1975 the Inheritance act was introduced and stands to assert that spouses, ex-spouses, children, dependents, and non-biological children can make a claim of the estate if they have been left out of the Will or a Will was not constructed ( Rules of intestacy).
The claim would have to be on the grounds that reasonable financial provisions have not been prepared for the claimant. Civil Procedure Rules also have to be taken into account, along with the extent of your desired previsions, financial evidence and history, witness statements and the overall eligibility and legitimacy of the claim.
We would advise that you seek the assistance of a legal professional as the proceedings for these claims include court hearings that are only available under restricted circumstances and the submission of substantial evidence. As with all of the grounds we have discussed, circumstance is a defining factor in your claim's end result.
Expert Probate Solicitors in Kent
If you are seeking legal advice about any Probate matters, or you are struggling to apply for a grant of Probate, please get in contact with our Probate Solicitors today, call us on 01795 472291 or email email@example.com.