Everything you should know about contesting a will

A recent study by Direct Line Life Insurance has revealed just how far Brits would go to challenge the will of a loved one. The research found that more than 24% of us would seek to dispute the wishes of a family member or friend if they disagreed with the division of their estate – equivalent to more than 12 million people in the UK.

As the number of contested wills continue to rise, we
look at why more people are challenging the final wishes of a loved one, the
most common reasons for challenging a will, and how these disputes can be
resolved.

Why are more people contesting wills?

Inheritance disputes are on the rise in the UK. This is Money reports that, in 2018, there was a 6% increase in people contesting a grant of probate – an important step in taking control of a deceased person’s estate. They also report figures that show a record number of inheritance disputes are being heard in the High Court.

So why are more people contesting wills?

One factor is rising property prices. Increasing property prices have resulted in inheritances being larger
than before, and it has made relatively modest estates worth fighting for.

Dan
Winter, partner at law firm Nockolds, says: “An estate needs to be of value to
be worth contesting, as otherwise the costs involved in pursuing a case can be
disproportionate. In many parts of the country pretty much any estate with a
house in will be of significant value and seen by potential claimants as worth
disputing.”

Another reason for the rise
in inheritance disputes is linked to the increased complexity of modern family
structures. Socio-economic changes mean that there is now a bigger pool of
potential claimants for every estate, which brings the risk that some will feel
left out.

“People are more likely to
marry multiple times, or cohabit outside of marriage or a civil partnership,
and if there are children or stepchildren involved, the likelihood of someone
feeling hard done by is even greater than before,” says Winter.

Additionally,
the public are now also more aware of the ability to challenge a will. High
profile cases, such as a daughter who contested her mother’s will when she left
her estate to animal charities, mean that society is now more aware of the fact
that they can challenge a loved one’s wishes.

Jane Morgan, Business Manager at Direct Line Life
Insurance, says:“While our research reveals people are
increasingly contesting wills, everyone has the right to choose how they’d like
to distribute their assets, even if it seems unusual or excludes even the
closest family members.

“People can be surprised and hurt by the contents of a
will, so people may wish to discuss with beneficiaries and those that might
think they would inherit, how they plan to distribute their assets.”

The 5 main grounds for contesting a will

There are five main grounds for contesting a will in the UK.

1. Undue influence

Research amongst family law professionals has
revealed that the most common reason for contesting a will in the UK is on the
grounds of ‘undue influence’. Such a claim alleges that someone has made or
changed a will in a way that they would not have done were it not for a
person’s undue influence.

However, according to legal experts, contesting wills on the grounds of ‘undue influence’ are the least successful petitions. These claims rarely succeed as it falls on the person challenging the will to prove that undue influence took place and is ‘inconsistent with any other hypothesis’ as to why the will was drafted in a certain way.

2. Lack of due execution

In order that a will is valid, it must comply with
requirements of the Wills Act 1837. This sets out that:

A will must be in writing and
signed by the person making the will (or by some other person in his/her
presence and by his/her direction).
It must appear that the person
making the will intended by his signature to give effect to the will.
The signature is made or acknowledged by the person making the will
in the presence of two or more witnesses present at the time.

To claim that a will is invalid, it must be proved that a will was not executed in line with these requirements.

3. Lack of testamentary capacity

It’s perhaps no surprise that, the older the person
making or altering a will, the more likely someone could claim that they lack
the ‘mental capacity’.

Challenges to wills based on lack of capacity have
increased as our population ages.

The legal test for capacity to make a will dates
back to the 1870 case of Banks v Goodfellow. It requires anyone making a will
to:

Understand the nature and
effect of making a will
Understand the extent of the
property of which they are disposing
Understand and appreciate the claims to which they ought to give
effect.

The person must also not suffer from a ‘disorder or
delusion’ which could result in them making a disposal they would not otherwise
have made. As age-related illnesses increase, more people are contesting a will
claiming the person was suffering from a ‘disorder or delusion’ which could
invalidate the will.

Experts suggest that one way to avoid such claims is to obtain a medical opinion at the time of preparing a will that shows the person had ‘full capacity’ when making or changing their will.

4. Forgery

A will is invalid if the person making it hasn’t
signed or acknowledged it.

So, for cases alleging forgery, the court will ordinarily ask a handwriting expert to conduct a forensic examination to help determine whether a will is a forgery.

5. Lack of knowledge and approval

A person making a will must know and approve of the
contents of their will before it is executed.

A claim of ‘lack of knowledge and approval’ is
often combined with a claim that the person making a will did not have the
requisite level of capacity.

Direct Line report that this is the most successful
ground for contesting a will in the UK.

Do all challenges to wills end up in court?

No. While more than 110 cases ended up in the High
Court in 2015, it’s relatively rare for a case of this nature to proceed to
trial. Most cases are resolved out of court through mediation – often to avoid
the significant cost of going to trial.

Can I write a will that’s impossible to challenge?

No will is completely immune to a challenge. However,
there are steps that you can take which stand up to more scrutiny in the event
of a challenge:

Have your will professionally drafted rather
than making a ‘homemade’ will
Add a ‘letter of wishes’ which explains why
your will has been drafted in the way it has. This can provide important
evidence in the event of a dispute
Openly discuss the contents of your will with
your family to make sure there is no uncertainty when you die
Update your will regularly if there are
changes in your or your family’s circumstances.