When a Will is Contested
To quote an often repeated logic:
Everyone should have a Will. Once you start working and earning money, have investments, and own material possessions (even long before you marry and have children) you should have a Will. But the story does not necessarily end there if there are challenges to your final wishes, which usually come from family members or siblings. Therefore, another important piece of logic is to be careful what you wish for and how you document it. Wills are vital documents because they facilitate the actions that must be taken when somebody passes away. Firstly, upon the passing of a loved one, you have to know where to locate the final written Will and arrange for the administration of the estate so that the deceased’s wishes can be implemented.
The circumstances of contestation
Any contestation of a Will can be expensive and time consuming. Because a Will is being contested does not mean that the document becomes invalid. Under probate law, Wills can only be contested by spouses, children, or people who are mentioned in the Will or have been mentioned in a previous Will. When one of these people notifies the court they suspect a problem, a Will contest begins. Although it is rare to find family members disagreeing with the contents of a Will, there are occasions where family members do not agree with what has been written. This might be because the family considers the Will to be out of sync with what the person would have wanted at the time of their death. It may also be because a particular member of the family believes they have been treated unfairly, regardless of what the rest of the family may think. However, a person cannot contest a Will just because he or she feels left out, or because the deceased had promised something different to what is now read in the document. A last Will and Testament can only be contested during the probate process when there is a valid legal question about the document or the process under which it was created.
Grounds for contestation
- Signature and witnessing: The Will must be signed by the initiator and witnessed by two people who sign to confirm they were present for the procedure.
- Forgery: This occurs if a Will is found to be fraudulently signed by someone other than the decedent.
- Lack of Due Execution: The procedures prescribed by law have not been followed when preparing the Will.
- Mental capacity: One of the most common reasons for a contest is that the person signing the Will did not have full mental capacity at the time. The person must understand their assets, who their heirs are, and the effects of the Will.
- Elder Abuse: This relates to financial, physical, or psychological abuse that played a role in how a person signed their Will.
- Fraud: This occurs when the person signing is given an alternative document to that which they believed to be correct.
- Undue influence: A Will is invalid if the testator was pressured or manipulated at the time of signing.
The process of contestation
You will only be able to start this legal process if you can prove a certain type of relationship with the person who has died. This includes being a genuine family member, co-habiting with the deceased, or being mentioned in a current or previous Will. A dispute about a Will can lead to a long, drawn out court process. This is likely to be stressful and expensive and should only be considered as a last resort. If there is consensus that the Will should be deemed invalid, then a solicitor will be able to take the case to court. If the court agrees that a Will or codicil is invalid, they may throw the document out, use an earlier Will, or distribute assets according to their own interpretation.
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