There are several grounds for challenging a wills and, as intergenerational wealth transfer continues, involving trillions of dollars and equivalent in assets around the world, disagreements and legal action are likely to be a feature of this process.

The following article about what advisors need to understand when wills are challenged comes from Katarina Morgan (pictured below), who is a partner and mediator at Taylor Walton Solicitors. The editors are pleased to share these insights; the usual editorial disclaimers apply to views of contributors.

To comment, email tom.burroughes@wealthbriefing.com and amanda.cheesley@clearviewpublishing.com

Katarina Morgan

Emotions in families run high when a loved one passes away. Not only are parties grieving, but they may have questions: who is managing the affairs? What happens to the house, the money, the business and was there a will?

The majority of claims brought for challenging a will arise by aggrieved parties (usually family members) because they discover the contents of the will are not what they were expecting or it has been recently changed. 

There are several grounds for challenging a will. 

Valid execution
A will must be validly executed (signed) by the testator, in writing and signed in the presence of two or more witnesses who will then also sign the will at the same time to verify they witnessed the execution. The testator must have also signed the will knowing it would make it official. These are requirements under section 9 of the Wills Act 1837 and if these are not met, then a will not be valid.

Testamentary capacity
When the testator executes their will, they must have mental capacity. This means having the mental ability to know what they are doing, who they are leaving their assets to and understand that they are making a will.

Undue influence
Undue influence takes place when someone applies pressure or coerces the testator to write or change their will.

There are two categories of undue influence: actual or presumed. Actual undue influence arises when one party applies pressure or coercion, including making unlawful threats (duress). Presumed undue influence arises from a relationship between two people where one party has influence over the other and takes unfair advantage over them.

Knowledge and approval
A lack of knowledge and approval takes place when the testator had capacity to execute the will and it was validity executed, but they are not aware of its contents. For example, the will making a gift to someone who the testator did not intend on giving.

Fraud or forgery
Fraud takes place when someone provides false information to the testator to poison their mind about a beneficiary’s character to cut them out of the will. 

A forgery takes place when someone has forged a will and has signed it in the testator’s name. They may have pretended to be the testator and instructed a solicitor or will writer to prepare a will, or they may have destroyed a testator’s will without their permission. 

Who can contest a will?
In theory, anyone can contest a will provided they can establish that they have a sufficient interest i.e. a family member, friend or business associate.

Claims under the Inheritance (Provision for Family and Dependants) Act 1975 have a set criterion of claimants such as children, grandchildren, spouses and unmarried partners for claims for reasonable financial provision.

Where the testator has specifically excluded estranged children or grandchildren then a Letter of Wishes should be prepared alongside the will to explain their decision in more detail.

What happens next?
For all contested probate claims, the case will fall to the facts and the evidence.

Speed is important. Depending on the type of claim there may be a time limit. If the executor(s) have already obtained a grant of probate and distributed the will, it may be harder to recover assets.

The person challenging the will should register a caveat as soon as possible which, if challenged and made permanent by the Probate Registry, can’t be removed without a court order or by consent. The executors won’t be able to make any distributions until the dispute is either settled or a judgment ordered by the court, so it is important to begin a conversation early, especially if you have buyers lined up to buy a property, business or other high value assets.

Around one in 10 will challenges goes all the way to trial which could take over two years and cost tens of thousands. Mediation can be crucial to settle the matter quickly to help preserve relationships and reduce costs for the estate. Typically, more than one mediation session may be needed to settle.

Advisors may be called to provide information or evidence in will disputes so it is vital to be able to identify the circumstances where a will might be challenged. Keep a record of discussions with the testator and their decisions which are made at the time, especially if witnessing a will.