How can a will be challenged?

Disputes in relation to wills and estates are becoming increasingly common, especially within rural and farming communities in relation to family farms previously passed down through generations.

There is often an expectation that an eldest child, or a child that dedicated their life to working on the farm, should benefit over a sibling who might have chosen to tread another path. Disputes can also arise where a second or third wife comes into the picture.

See also: Farmer’s son wins inheritance battle to keep farm

Wills can be challenged on one or more of the following grounds:

1. The will has not been correctly executed. A will must be in writing (handwritten or otherwise) and must be signed by the person making the will in the presence of two witnesses.

It must then be signed by the two witnesses, in the presence of the person making the will, after she or he has signed.

2. The person making the will lacked the necessary mental capacity. An individual will be considered to have sufficient mental capacity to make a will if he understands the nature of the act of making a will and its effect, the extent of his property and the individuals for whom he is morally bound to provide and the consequences of not providing for those individuals.

Capacity is time and task specific, so that someone can generally lack capacity to manage their affairs, but still have capacity to make a will on a particular day. 

3. The person making the will lacked knowledge or approval of the contents of their will. These claims invariably arise when the circumstances surrounding the making of a will appear to be suspicious, so it must be proven that the person knew of and understood the contents of their will.

4. The person making the will was subject to undue influence (they were pressured into making a will they would not have made had it not been for the coercion of another).

5. The will is forged or fraudulent. The signature of the person purported to have made the will has been forged either before or after their death or someone has missed out, or alternatively benefited, on the basis of misrepresentations made by another person. 

Alternatively, if a will is valid but a person feels that they have not been sufficiently provided for they can potentially make a claim for a reasonable provision from the estate under the Inheritance (Provision for Family and Dependants) Act 1975.

The outcome of any such claim will depend on a range of factors including the contemporaneous evidence and witnesses available.

Timing can also be important. Any claim under the 1975 Act for example must be made within six months of the granting of probate.

It is important to remember that seeking expert legal advice at an early stage may mean that litigation and costly court proceedings can be avoided further down the line.

Litigation can be costly and stressful so exploring other avenues to resolve disputes, including mediation, is encouraged.

Background case – farming will dispute

Last week farmer Sam Jones lost a high profile inheritance battle in the High Court. He had sued other family members after his father, Allen Jones, died in 2012, leaving everything he owned including the family farm, to his wife and daughters.

Sam’s claim alleged that Mr Jones senior had promised him that after a life working on the farm it would be his one day. Sam also argued that his late father, who suffered from dementia in his latter years, had lacked capacity to make a will and was subject to undue influence by his wife.

The court ruled against Sam, finding that he had already received land and money from his father during his lifetime and that Mr Jones was entitled to leave his estate to his wife and other children on his death.

* Katherine Pymont is an associate in the contentious trusts and probate team at law firm Kingsley Napley.
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