Claims about wills, probate, and inheritance
Disputes about a will or an inheritance happen for a number of reasons. It can be because there is something wrong with the will itself, there was something affecting the will maker’s mind or ability to make the will, or it may be because they have not acted reasonably when deciding who should inherit from them.
If you feel you have been unfairly treated, or if there is something wrong with a person’s will which you feel needs to be challenged, then it is very important that you get specialist advice straight away.
To help you find out more about contesting a will or an inheritance – see the topics below:
1. Mental Capacity
The will maker wasn’t of sound mind when they made their will
To make a will, a person must be of sound mind. In law this is called having the ‘mental capacity’ to make a will.
Mental capacity is a complex subject, but essentially, it refers to a person’s ability to make rational and well thought-through decisions. However, just because someone makes an unexpected decision does not mean they lack mental capacity. To complicate matters further, a person can have the mental capacity for one type of decision (e.g. to manage their day to day affairs) but not for another type of decision (e.g. to make a will), and people can lose and regain mental capacity at different points in their lives. It is important to obtain the opinion of a specialist solicitor where someone’s mental capacity is doubted and a challenge to a will is being considered.
The law sets out a test to decide whether a person has the required mental capacity. It says that the person making the will must understand:
- That their will ensures all their possessions, money, and other assets (called their estate) are given out to those the people named in the will on their death.
- What possessions, money, and other assets they own or are entitled to and will therefore be distributed on their death.
- The moral claims to which they might take into consideration when making their will. The natural expectations and hopes of an inheritance by their close family and friends .
You should seek the advice of a specialist solicitor to see whether the will maker would have passed the above test.
So how do I show that the will maker did not have mental capacity?
Where the will appears to be rational (for example by leaving the estate or parts of the estate to the people who might be expected to inherit) then the courts assume that person making the will had the mental capacity required to make a valid will. To overcome this assumption evidence to the contrary will need to be given to the court to suggest there was no mental capacity, and the court, and that evidence must be strong enough to convince the court that the will should have no effect.
When deciding whether the will maker had the required mental capacity the court will look at their mental state on the day that they signed their will. Just because somebody did not have the required mental capacity in the period leading up to them signing their will does not prove the will is invalid, though it will of course provide very important evidence. If the will maker was of sound mind at the time they signed their will then the will, regardless of their mental state before that, then the will is valid.
Therefore, often the strongest evidence about mental capacity comes from the persons who witnessed the will maker signing the will.
2. Will not signed properly
Where the will wasn’t signed according to the law
There are strict legal rules about the way a will must be signed. If these are not followed the will is not valid and therefore has no effect. These rules are:
- The will must be written down and signed by the will maker, or by someone else on behalf of the will maker at their request (for example where the will maker is physically unable to sign themself). Where someone signs on behalf of the will maker the will maker must be present at the time the will is signed.
- The will maker must have intended that by signing they were making their will a legal document. Clearly, if the will maker didn’t know what they were signing then they couldn’t have intended that.
- The will maker must have signed the will in the presence of two or more witnesses who were together at the same time.
- Each witness must then have signed the will in the presence of the will maker, or at the very least signed it on their own but shown their signature to the will maker.
In practice, it can be difficult to establish that a will was not signed according to these rules where it has been prepared by a solicitor, as the will usually contains wording at the end to suggest the rules have been followed. However, ‘home-made wills’ (i.e. a wills which are not drafted by a solicitor or professional will writer) often cause problems by not making it clear that the rules shown above have been followed. In that case, statements may need to be taken from the witnesses about what actually happened when the will maker signed their will.
If the will only has the will maker’s signature on it (i.e. and no witnesses’ signatures) then the will has not been signed correctly and it will not be valid.
Even where a will has been properly signed and witnessed it may be that someone named in the will should not inherit anything. If one of the witnesses stood to inherit through the will then their inheritance does not take effect.
It is important to speak to a solicitor to find out whether there has been any problems with the way a will was signed.
3. Knowledge of the Will’s Contents
A claim that the testator did not understand or know what was in their will
A will maker must know and approve of the contents of their will, though they need not understand the precise legal effect of what is in their will. In such cases the court needs to be satisfied that the will maker understood what they were doing and that the will represents their intentions.
Where on the face of it a will appears to be rational and is signed properly, and the will maker appears to have had the required mental capacity, it will be assumed that the will maker knew and approved the contents of the will. Evidence would then be needed to prove that the will maker did not in fact know of or approve the contents of the will.
It may be that the will maker did not read over their will before signing it. They may have difficulty in reading, either because they did not have their reading glasses or because they have poor sight, or because they are illiterate. In these circumstances someone would need to read the will aloud to the will maker in order for them to become aware of what it says.
Examples of situations where a will maker may not know of or approve the contents of their will are:
- where a beneficiary is very active in getting the will maker to make a new will or has been involved themselves in the preparation of the will
- where the will maker is blind, unable to read, or unable to communicate that they do not understand what is in their will
- where the will maker just signs the will without reading through it first
These examples do not mean conclusively that the will maker would not have known or approved the will, but they are situations where the circumstances would need to be looked at more closely.
It is for a person making a claim that a will is invalid to show that there is evidence to arouse the court’s suspicion that the testator did not in fact know of or approve the contents of their will.
Where the will wasn’t made by the person named on it, but rather by someone else pretending to be them
An allegation that a will has been forged (i.e. made by someone pretending to be the person named on the will) is likely to be rare, but such cases have been known. It is important to have in mind that convincing a court that a will has been forged is difficult, so strong evidence will be required.
Detecting a forgery can be difficult, but there will often be something that arouses suspicion amongst the friends and family of the person named on the will. It is likely that the person who brings the forged will to light is responsible for the forgery, but not always.
Evidence will need to be gathered about the circumstances surrounding the will being drafted and signed. If the will was drafted by a solicitor then gathering evidence should far easier than if the will was ‘home-made’.
Handwriting analysis is often used in these cases to analyse the signatures on the will, and if it is hand written, the writing making up the will itself. However, such evidence alone will rarely prove conclusive and so corroboration from other sources, such as family and friends, or the will itself, is important.
5. Pressure applied to change a will
It might be that the will maker was put under significant pressure to make a will or change their existing will
The allegation here is that someone has forced the will maker to make or change their will so that it benefits the person who has applied the pressure or someone close to them. Suspicions may be raised by someone ‘taking’ the will maker to have their will made or changed, by being aggressive or abusive to the will maker around the time the will was made or changed, or by being otherwise involved in the will being made or changed.
Making a claim such as this requires good evidence that pressure was applied and so the advice of a solicitor who has experience of such matters is essential to build a case strong enough to stand up in court.
6. Being tricked into changing a will
Tricking someone into changing their will
If someone changes their will because they have been led to believe something that is untrue, for example that an existing beneficiary has done something so bad that it changes the will maker’s mind about leaving a legacy to that beneficiary.
Again, good evidence is required for a claim such as this to be accepted by a court. Specialist advice is essential.