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Published On: July 18, 2016 | Blog | 0 comments

This Will seems so unfair!

Under English law, a person can leave their entire estate however they want and to anyone they want. Accordingly, even if what the testator does with his assets is unfair, nothing can be done about it?  The disappointed beneficiaries will have to live with that decision?  Not necessarily!

Although a Will cannot be challenged simply because it is considered unfair, there are a number of grounds on which a Will or certain provisions in a Will may be contested and rendered invalid.

A Will as a whole may be contested on the ground of:

1) Lack of valid execution

A Will must be in writing and signed in the presence of two or more witnesses. The rules regarding witnesses are strict.  If they are not followed, the entire Will may be invalidated.  It is however for the person contesting the Will to prove that the formalities have not been followed, not the other way round.

2) Undue influence

If it can be shown that the testator was coerced into making a Will or into including certain provisions in a Will, this Will will be declared void. Coercion can be either obvious, such as threatening physical violence or subtle and drawn-out.  In order to successfully invalidate a Will on this ground, one needs to prove real coercion.  Mere influence will not be enough.

3) Lack of mental or testamentary capacity 

For a Will to be valid, the testator must have had the mental capacity to understand what he was doing when he made the Will.  Often, a testator’s lack of capacity will be the effect of a long-term medical condition. Alternatively, a lack of capacity may be a result of consumption of strong medication, drugs or alcohol.  However, mere diagnosis of an illness or evidence of substance consumption will not be enough.  The effect of an illness or a substance consumption on the functioning of the mind is a question of a degree.  If a Will is contested on this ground, the testator’s capacity must be assessed by medical and psychiatric professional experts.

4) Fraud or forgery

These are much rarer grounds on which Wills are contested because they are extremely difficult to prove.

When validity of the entire Will is not contested, a provision in a Will may be contested or amended in accordance with the following legal principles:

1) Under the concept of Proprietary Estoppel

Proprietary estoppel provides a remedy when an assurance or promise has been made to a potential beneficiary by the testator that he/she would inherit property. When the beneficiary can show he relied on the promise to his detriment and the testator fails to follow through with the promise in the Will thus causing B to suffer a loss, the law provides a remedy for that loss.

2) Under the Inheritance (Provision for Family and Dependents) Act 1975

A potential beneficiary can challenge a provision in a Will on the ground that, given the nature of the relationship between the beneficiary and the testator and also the beneficiary’s needs, the beneficiary should receive more than is stipulated in the Will.

3) Under the Administration of Justice Act 1982

Courts have the power to rectify a Will within 6 months of the date of the Grant of Probate if there is clear evidence that the Will doesn’t reflect the testator’s intentions because of a typographical or clerical error or there has been a failure to understand the testator’s clear instructions by the person who drew up the Will.

For more information on challenging a Will or it provision, please click the highlighted links above or contact me for advice.

To read this blog in Polish, please click here.

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