Why might someone challenge a Will?


An individual may decide to challenge a Will for a number of reasons. In my experience, the most common reasons tend to be that they feel they have been unfairly disinherited, that they have not inherited a sufficient amount or because they are concerned that the testator (the person making the Will) was incapable of understanding the terms and purpose of their Will when it was signed (often referred to as lacking mental capacity).

What are the grounds for challenging a Will?

There are various available grounds for challenging a Will. As mentioned above, a challenge may be brought if there is reason to believe the testator lacked the mental capacity required to understand their Will. Mental capacity can be affected by many factors, ranging from dementia to substance abuse.  In order to succeed on this ground, it must be evidenced that the testator did not understand the consequences of signing their Will and, among other factors, the extent and value of their assets.

Another possible ground is undue influence. For a challenge to a Will to succeed on this basis, the person bringing the challenge must be able to prove that someone exercised such influence over the testator that it overpowered their discretion to make their own decisions.

Both of the above grounds seek to show that the Will in question is invalid. However a valid Will can also be challenged if a specific class of person can show that they have not been adequately provided for under the terms of the Will.

Who can challenge a Will?

In order to challenge a valid Will on the basis of no inheritance or insufficient inheritance, the person must have been a dependent or child of the deceased, a spouse of the deceased or cohabiting with the deceased ‘as husband and wife’ for two years preceding death. In relation to other challenges, these are typically bought by family members, a beneficiary under the Will or an earlier Will, or someone who was promised something by the deceased.

What if there was no Will?

If the deceased did not leave a Will, they died intestate. This means their estate will be distributed in accordance with the rules of intestacy which often results in their assets being given to their surviving spouse or closest blood relative. Depending on the exact circumstances, it may still be possible to bring a claim against the deceased’s estate where they died intestate.

A probate dispute in any form can create immense difficulties among families, so getting expert advice at an early stage is essential in order to understand your rights and options. If you think you have grounds for a claim, it is important to take action quickly because certain time limits may apply. I can offer specialist advice to help you determine whether you have a claim and how to proceed.

Helena Taylor

Dispute Resolution

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