The main grounds to contest a will are:
Lack of mental capacity – the party looking to contest the will must prove that the deceased could not write the will. The Mental Capacity Act 2005 states that’s a person will be presumed to have capacity until it is proved they do not. A person will lack capacity if, at the time in question,
He is unable to decide for himself because of an impairment, or a disturbance in, the functioning of the mind or brain.
The deceased did not understand and approve the content of the will – if the court is suspicious, it is up to the defence to prove that the deceased had full understanding.
Examples that could create suspicion are where the deceased:
- Was hard of hearing or had a speech impairment
- Visually impaired
- Low levels of literacy
- Frail, unwell or vulnerable
- Is purported to have directed that the will be signed by someone else
- Undue influence – this is where there was pressure to make or change a will. The deceased must have acted against their own volition and coerced into making or changing a will when they didn’t want to. it is very difficult to obtain sufficient evidence for this claim especially when the chief witness is deceased.
- Forgery or fraud – if it can be proved that the will has been forged then it will be invalid. It is always advisable to get a handwriting expert’s opinion. Claims on this ground are rare nut can happen.
- Rectification or construction – this ground will be used where the will is ambiguous, unclear or does not carry out the person’s wishes. This mistake could have been made by the will writer so the will could still be valid. Be sure to get advice. A claim of this nature must be issued within 6 months of a grant of probate being issued.
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