Question: How can someone contest or challenge a will? I want to make sure that no one can contest my Auntie’s will, as I do not want people disputing it.
She is a very elderly lady, and I do not want people accusing her of not having all her mental faculties and saying that they do not believe that she would have written what is in the will. I believe that people will say that she was forced to write it, as the will is totally opposite, from what people have expected she would have written. I would like to know how people go about contesting or challenging a will, so that we can make sure we protect her will from being challenged or contested.
The Answer from Solicitors online
When making a will, you must act carefully to ensure that the will is valid. In general, English law will recognise a will as valid, if it is in line with the law of the country where the will was created or the country where the deceased lived in or was a national of, at the time of the will’s creation or the deceased death.
Furthermore, English law requires that for a will to be valid, the person who’s will it is, known as the testator, should have had the capacity and intention to make the will and also have met the following conditions.
Conditions for making a valid will
At the time the will was made, the testator must have been over the age of 18. Additionally, they must have also had the necessary mental capacity. For a testator to be regarded as having the mental capacity they must have understood three things at the time they made the will:
(a) the nature of the act (the making of a will) and its effects;
(b) the extent of their property; and
(c) the legal claims to which the will could result in.
If someone such as a Solicitor is making a will under instructions of the testator, the following criteria must have been met:
(a) the testator had the required capacity at the time, to be able to give instructions to the person making the will on their behalf;
(b) the will was created in accordance with the given instructions of the testator; and
(c) at the time of creation of the will, the testator understood, that he or she was signing a will.
The Mental Capacity Act 2005
The Mental Capacity Act 2005 was implemented in October 2007. The Act provides a new test of capacity in regards to decision making for people who are unable to make decisions for them.
Section 1 of the Mental Capacity Act 2005 states that, it is assumed that a person has the capacity to make their own decisions until it is proved otherwise. This relates to a person’s capacity to create their will, or give instructions to another person on what to put in their will.
Section 2 of the Mental Capacity Act 2005 states that a person lacks capacity in relation to a matter, such as creating a will, if they are unable to make a decision in relation to the matter at hand, because of an impairment or a disturbance in the functioning of their mind or brain. For example, a person who is unable to understand the information relevant to the making of their will and their property, should be regarded as lacking the capacity to make a valid will.
Challenging or contesting a will
Anyone who wishes to challenge or contest a will, has to prove that the testator made the will or a particular part of it, as the result of force, fear, fraud and undue influence; or that the necessary knowledge, capacity or approval of the testator in making the will was lacking.
In the case the testator is blind or illiterate, or someone has signed the will on the testator’s behalf, a suitably written attestation clause, can act as the necessary evidence to show that the testator had knowledge and approval of the will.
In the case that there are suspicious circumstances, such as where there might be substantial benefits to the person who prepared the will, or a close relative of that person, evidence will be required of the testator’s knowledge and approval of the contents of the will.
Challenging a will and proof of capacity
Anyone who wishes to challenge the validity of a will on the basis that the testator did not have sufficient capacity to make the will, has to prove that the testator did not have necessary mental capacity to make the will at the time.
Lack of capacity and making a will
Where a person lacks the necessary mental capacity to make a valid will for themself, the Court of Protection is able to make a will on behalf of that person in accordance with Section 16 of the Mental Capacity Act 2005.
If you need legal advice on contesting a will, you can speak to a Wills and Probate Solicitor online right now