A Guide to the Grounds for Contesting a Will

Lack of Due Execution

There are many legal regulations in place to ensure that wills are prepared according to the wishes of the testator and that no outside influences are able to affect the contents. To be considered valid, a will must be signed in the presence of at least two witnesses, by a testator with clear intentions to give effect to the will.

Failure to execute a will properly can be grounds to issue a legal challenge. This is a more common problem in wills prepared without the oversight of a qualified solicitor. While it is possible to prepare a legally sound will on your own behalf, it’s easy to overlook or misunderstand the regulations and thereby invalidate the will if you do not have input from a legal expert.

In some cases, it will be clear that the will has not been created according to legal regulations - for example, if it is missing witness signatures. In other cases, eyewitness testimony from the witnesses to the will may help you to prove that the will is invalid on the basis that it was not prepared according to the law.

Lack of Testamentary Capacity

In some cases, a will may have been created in a way that is legally sound and valid, but another consideration is the testator’s mental health. When giving instructions for a will, the testator must be of sound mind and understand the extent of their estate. They must also be clearly aware of whom they are choosing to include or exclude in the will. 

It can be difficult to prove that a testator was not of sound mind when signing their will, but if the document was created while they were in a period of mental ill-health, or if they experienced a mental illness or disorder on an ongoing basis, this may be an indication that they lacked the testamentary capacity to make the will.

If the testator had certain other impairments that may make it more difficult to verify the contents of the will, such as blindness or a lack of fluency in English, this can also be grounds for contesting a will. However, this would usually be considered a ‘lack of knowledge and approval’ for the purposes of legally challenging the will.

Lack of Knowledge and Approval

If it can be demonstrated that a testator did not know, understand, or approve of the contents of their will, this can be a ground to contest the will. This is most common when a testator has a physical or communicative impairment; for example, if they are blind, hard of hearing or deaf, or illiterate. In many of these cases, a testator may be unable to review the contents of the will themselves, and may place their trust in someone else to do this for them.

It will not always be enough to simply show that the testator had an impairment, however. Additional evidence may be necessary to demonstrate that the will was prepared against the person’s wishes, whether intentionally or unintentionally. In cases such as these, consideration will be given to whether a legal professional was involved in the creation of the will and, for example, if language was an issue, whether an independent interpreter was used if there was a concern as to the testator’s knowledge or understanding about the contents of the will.

Undue Influence

Sometimes, a will may have been executed according to the law, by a testator who is of sound mind, but has been affected by the undue influence of someone else. Vulnerable people may be more susceptible to coercion and manipulation, and if there is evidence to suggest that someone has tried to influence the contents or provisions of the will, it may be possible to challenge the will.

Manipulation and coercion may take the form of threats of violence against the person, or someone dishonestly pursuing a relationship with the person under false pretences, but to contest a will on these grounds, you will need to provide strong evidence to prove that the testator was coerced. If the testator was especially vulnerable at the time that their will was changed, or added a new beneficiary or disproportionate gift unexpectedly, this could be evidence that they were coerced into making changes.

Poisoning of the Mind

Similar to undue influence is poisoning of the mind, in which a person makes false statements to a testator about another potential beneficiary of the will, in order to have that person removed from the will or reduce their share of any inheritance they are due to receive.

Because family circumstances can often be complicated, you will usually need to provide strong evidence to support contesting the will on these grounds. You may need to prove that another party made false statements about you or someone else that they knew to be untrue and that they acted with malicious intent to have that person removed from the will.

Depending on your relationship to the deceased, you may also need to establish that you could reasonably have expected to be a beneficiary in the will if the false statements hadn’t been made. This is not always easy to do, and you should speak to a legal expert to determine the viability of your case before you decide to act. 

Fraud or Forgery

If you suspect there has been an element of fraud or forgery involved in the creation of a loved one’s will, this will often be grounds to contest the will, although the viability of any case will depend on the strength of the evidence.

Forgery involves a will being changed or altered in some way following its creation, or someone other than the testator forging their signature to make a false will look more legitimate. This is more common in cases where a person has created their own will and entrusted it to another person to look after, rather than instructing a law firm or other professional service to keep the will secure.

Fraud, meanwhile, will usually occur when a testator has instructed a person other than themselves to finalise the terms of their will. This second person may be in a position to exploit the testator’s trust and change the terms of the will to benefit themselves or someone else, without the testator’s knowledge.