Appealing Against a Will

A worryingly large number of people still do not make a will. The number of intestate deaths is still at a high level often resulting in difficult wrangling over the estate of the deceased person or, in some cases, the Crown simply taking everything. Even those who do make a will, however, are not always safeguarded. There are circumstances in which it is possible to appeal against an individual’s will and this happens more often than you may think, for one of two main reasons: because a person or group think that the will is either invalid, or that it is unfair.

Validity

In order for a Will to be Valid, it has to satisfy several basic conditions. Primarily, it must be signed by the testator (that is, the individual making the will), and must have been witnessed by two other people. One of the most common causes for complaint with regard to the validity of the will is either that the signature of the testator was not witnessed, or that the two witnesses were not present together when the will was signed by both the testator and themselves. Similarly, it is sometimes claimed that the testator was not mentally capable of making the decisions outlined in the will. In these cases, the entire will may be invalid. Furthermore, it sometimes transpires that one or both of the witnesses is also a beneficiary of the will. If this is the case, then the witness in question will not receive anything left to them in the will, and their share will be put back into the estate as a whole. The rest of the will, however, remains valid.

There are very few cases like these in which it is easy to prove that the will is invalid. If you were to contest, for example, that the testator was not mentally capable, then you would require firm medical evidence. You may need to go to court, and you will certainly need expert legal advice, so you should seek this first.

Dependants

It is also possible to challenge a will on the basis that it does not give ‘reasonable financial provision’ for the dependants of the testator. In order to make a challenge on these grounds you must be either: the spouse or civil partner of the testator; the former spouse or civil partner but you have not remarried; someone who has been financially maintained by the testator; someone who had lived as a partner with the testator for at least two years before their death; or a child of the testator.

If you fulfil one of these criteria and you feel that you have been unfairly left out of the will, you may have a claim under the Inheritance (Provision for Family and Dependants) Act 1975. This means that you may be able to claim a portion of the estate, but it is very difficult to do so. Although it may not be difficult to prove that you fall within one of the groups listed above, each case is treated on its own merits by a judge. As a result, it is far from certain that the case will go in your favour, and if it does not you may well be landed with a large bill for court expenses. If you are thinking about following this course of action, you should seek legal advice as soon as possible; it is also important to note that a case must be lodged within six months of the granting of probate on the estate.