Contesting a Will

If you have concerns about the validity or terms of a Will, we can help with contesting wills to ensure you receive your full legal entitlement.

There are many different reasons for contesting a Will, such as:

• Incorrectly drafted wills
• Wills not being signed and witnessed in accordance with the law
• Coercion (undue influence) of the deceased when they signed the will
• The deceased lacked mental capacity when they made the will
• Forgery or fraud

If there is a Will, then the first steps may be to make what is known as a Larke v Nugus request to the solicitors who drafted the Will. These are standard questions which can be asked about the circumstances surrounding when the deceased gave instructions for the Will to be drafted and then the execution of the Will itself.

If you have concerns and do not want probate to be granted on what could be an invalid Will, then you could enter a ‘caveat’ which prevents someone taking out a grant of probate, but there are legal consequences so before you do so it is advisable to seek expert legal advice.

Lack of Valid Execution of a Will

A Will is normally only valid if it is:

• In writing
• Signed by the deceased (or someone on his behalf on his instruction)
• Witnessed by two independent adults, who are both present at the signing, and who also sign the Will

Undue Influence

There must have been ‘coercion’ rather than just ‘persuasion’ to successfully challenge a Will on the grounds of undue influence. The form of the undue influence can take many forms: an instant act of pressure, intimidation, domination, control, or emotional pressure.

There is a 5 part evidential test:

1. The coercer was in a position to exercise influence
2. The coercer did exercise influence over the deceased
3. The influence so exercised was ‘undue’
4. The undue influence was exercised in relation to the Will
5. It was by means of the exercise of that undue influence that the will came to be executed

Simply put, the undue influence must be the only reasonable explanation rather than one of the possible explanations.

Lack of Testamentary Capacity

One of the grounds in which a Will can be challenged is lack of capacity.

The test for capacity is a 4 limb test:

• Did the deceased understand that they were making a will and the effects
• Did the deceased understand the extent of their estate
• Did the deceased understand as to those who would have claims on the estate
• Was the deceased impaired by any disorder of the mind or delusions

A judge will consider a number of factors including medical evidence and the evidence of the solicitor who drafted any Will

Forgery/Fraud

The forgery of a Will may include its creation and/or the imitation of a person’s signature with intent to deceive. The forgery will often give rise to a claim of fraud and have criminal implications too.

Usually you will need a hand writing expert to verify the signature of the deceased on any Will.

Given the seriousness of the allegations, this is usually quite a difficult ground to prove and should not be done unless you have supporting evidence.

Why Hodge Jones & Allen?

Highly Experienced

Our team has a collective 40 years of litigation experience and are highly experienced in dealing with Wills disputes.

Specialist Solicitors

We are accredited by the Association of Contentious Trust and Probate Specialists. We have specialist experience getting results for our clients.

One stop shop

As a firm we have specialists dealing with all areas and our teams work very closely together covering all the bases in order to mitigate loss and avoid litigation altogether. We pride ourselves on offering a one stop shop for our clients and serving all their legal needs in one place.

How to get in touch?

Specialist Experts

Whatever your needs, our team of highly experienced Wills & Probate lawyers can provide you with the help and advice you need. Contact one of our experienced team, either by telephone or email.

Arrange a meeting

We will arrange a time to meet to discuss your needs and particular situation in greater detail.

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We’ll ensure that the solicitor you deal with is the right match for your specific situation, helping you find the best possible resolution during a stressful and often sensitive time.