FAQs about Litigation and Dispute Resolution: I am concerned about the validity of a Will. Can I contest it?
The number of contested Wills and disputes about mental capacity is set to increase in future years. The main contributing factors are the UK’s ageing population and the rise in the number of people who suffer from dementia. When you also take into consideration an increase in property values and more complicated family arrangements, these issues often lead to complex situations.
So what can you do when you are concerned about the validity of a loved one’s Will? In this mini blog, Contentious Probate specialist Luke Watson provides a step by step guide.
Check the validity of the Will
For a Will to be valid:
- It must be in writing and validly signed and witnessed by two people;
- the person making the Will must know about and approve of its contents;
- the person making the Will must have the mental capacity to make the Will and understand the affect it will have. This is known as “testamentary capacity”.
Testamentary capacity
A Victorian case from 1870 called Banks v Goodfellow is still good law. The test is that the person signing the Will must understand what they are doing and the extent of the property or possessions that they are giving away in their Will.
If there are suspicions regarding an individual’s mental capacity it will be necessary to analyse their medical records.
Undue influence
Where the Will of a frail or elderly individual is in doubt questions may also arise as to whether the person who made the Will was being improperly influenced. In legal terms “undue influence” means coercion and can often be difficult to prove. In contrast with concerns about mental capacity there will rarely be any written evidence of undue influence.
What should I do if I have concerns about a Will?
Cases involving issues such as mental capacity or undue influence are often complex and challenging a Will on these grounds requires specialist advice. If you have any concerns about the validity of a Will it is important to speak to a specialist solicitor without delay.
At Mogers Drewett we have a team of solicitors specialising in all types of disputes, including contesting a Will. If you have any questions or would like to discuss your situation, then please get in touch with our Disputes team on 0800 533 5349.