How to defend a challenge to a will

Defending a challenge to a will

For further guidance on how to defend a challenge to a will call our free legal helpline on 0333 888 0407 or send us an email.

Defending a challenge to a will can be stressful and demanding. Emotions often run high when a will is challenged, particularly when the allegations made appear personal or unjustified. Whether you are a beneficiary or the executor of an estate it is important to understand what you are facing when someone challenges a will.

You may find out about the challenge because a caveat has been entered against the estate or you may receive a solicitor’s letter notifying you of the claim. Either way, it is important to clarify what is being alleged and what evidence exists before deciding on your response.

Our Legal 500 recommended team of contentious probate lawyers are specialists in disputed wills and are highly experienced in defending challenges. For an example of the type of work we carry out you can read this case study of a will challenge that was successfully defended.

When looking at how to defend a challenge to a will it is useful to start by reviewing the legal grounds on which the Will is being challenged.

The grounds for challenging a will

While there are many different grounds on which a will can be challenged, the most common are:-

1.         failure to comply with formalities;

2.         lack of testamentary capacity;

3.         lack of knowledge and approval;

4.         undue influence; and

5.         forgery.

How to defend a challenge to a will based on lack of mental capacity

If you are defending a challenge to a will based upon the testator’s mental capacity then the legal and medical issues could be complex. The test for mental capacity was set down in the Victorian age and the case of Banks v Goodfellow [1870] remains good law to this day. Defending a challenge to a will on the basis of lack of mental capacity requires an understanding of:-

1.         The nature of the will and its effects;

2.         The extent of the testator’s property; and

3.         Moral claims which may be brought against the estate.

The test also requires the testator to be free of delusions which might impact upon the terms of the will.

The starting point is that it is for the defendant to prove that the will is valid. If the will meets the required formalities and appears rational there is a presumption that the testator had capacity. It then falls on the person challenging the will to raise real doubt about the testator’s capacity. If you are faced with a capacity challenge, then, assuming the will is rational and properly executed, you can expect the challenger to provide evidence to support their position as it is for the claimant to prove their case. Generally, the medical records of the deceased and the will preparation file of the solicitor who prepared the will (assuming it was professionally prepared) are likely to be the starting point for both sides.

How to defend a challenge to a will based on lack of knowledge and approval or undue influence

For a will to be valid, the testator must ‘know and approve’ of its contents. A person might have the required mental capacity but if he signs a Will without having read it or knowing its contents it is likely to be invalid. Similarly, if he signed it because someone else forced him to do so, it may be invalid.

It is presumed that people who make a will have the necessary knowledge and approval of its contents. This presumption does not however arise if the testator is blind, illiterate or where there are suspicious circumstances. These types of challenges can be separated into two categories, those based upon a mistake and those based upon the actions of a third party. The latter type of claim are often the most emotionally charged. Allegations of fraud or undue influence being placed upon the testator can be hurtful to receive, particularly if no supporting evidence is provided. It can be more difficult to obtain evidence in these types of claim because of the nature of the allegations, so both parties often need to think more creatively to try and support their position. Witnesses may be required which can serve to heighten tensions between the parties and cause divisions within families.

Removing a caveat

If the administration of an estate is being held up by a caveat which you feel is not justified then you may wish to consider taking steps to have it removed. If so, our short guide, ‘How to Remove a Caveat‘, is essential reading.

The importance of taking early legal advice

Whether you feel that the allegations being made are completely without merit or whether there is sufficient evidence to raise some concern in your mind, it is sensible to take specialist legal advice as soon as you learn of a potential will challenge. Involving solicitors can help to counter the personal nature of these claims and obtain clarity at an early stage.

If you are the executor handling the estate we can advise you upon your duties, obligations and the options available to you. If you are a beneficiary we can advise you upon the merits of the challenge, the impact it could have on your inheritance and the best way to defend your position.

So, if you are defending a challenge to a will and would like initial guidance on how to respond then call our free legal helpline on 0333 888 0407 or email us at [email protected]

How to defend a challenge to a will