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I watched Knives Out over Christmas. Fantastic film, if you can look past Daniel Craig’s southern drawl. I did see him in James Bond a couple of days after watching Knives Out and I couldn’t take him seriously, though. He’s forever Benoit Blanc to me now.
Anyway, in Knives Out (I’ll try not to give away any major spoilers in this blog), Harlan’s Will is a pretty big plot point. It causes chaos in the Thrombey family. As soon as it’s read out everyone starts arguing, talking over each other, and whipping their phones out to Google ‘contesting Wills’.
And my Will-writing-employee spidey senses started tingling. I decided I was going to write a blog that would’ve helped the Thrombeys – a blog that tells everyone all they need to know about contesting Wills.
Not straight away, though – it was still Christmas. I had more pressing things to do, like eating a full box of Maltesers for breakfast. But Christmas is over now, so I guess it’s time to start giving people valuable information about Wills again. In this blog, we’re going to look at what options there are for contesting Wills – so if your elderly, multi-millionaire father wrote you out of his Will shortly before he died, what are your options for contesting his Will?
Wills Act 1837
The Wills Act 1837 gave every adult the power to distribute their possessions however they wanted upon death. The Act still has power today, and if a Will doesn’t meet the requirements of it then it’s not considered valid.
According to the Wills Act 1837, a Will has to be:
- in writing, signed by the person making the Will (known as the Testator)
- signed with the intention of making a valid Will
- signed in the presence of two witnesses, who also signed the document
They’re the very basics of writing a Will – 99.99% of the time you can take these for granted. If a Will isn’t signed by the Testator and witnesses then it’s a shoddily made Will, it’s not valid, and it can easily be contested.
A Will’s only valid if the Testator had testamentary capacity when they made it.
In short, that means they had a clear mind at the time of making the Will and weren’t suffering from any mental illness that affected their judgment. In legal terms, it means that they:
- understood the nature of a Will
- understood the value of the property they are disposing
- understood the claims of those who might have expected to benefit from the Will (whether they’ve been included or not)
- didn’t have a mental illness or disorder of the mind that influenced their decisions and affected the outcome of the Will
If you can prove that the Testator lacked mental capacity at the time they made their Will – if, for example, they struggled with mental health and were going through an episode when they wrote their Will, you might have a case for contesting it.
Lack of knowledge and approval
The Testator needs to have full knowledge of what’s included in their Will and fully approve of how their assets will be distributed. If the Testator lacked knowledge they couldn’t give full approval and therefore the Will isn’t valid.
It might be pretty hard to imagine a scenario where someone doesn’t know the contents of their Will, so I’ll give you an example. If the Testator is blind and someone reads the Will to them but leaves certain details out, then the Testator doesn’t have full knowledge.
Contesting Wills on the grounds of lack of knowledge and approval can be a massive pain – you’ve got to prove that the Will was written in suspicious circumstances and the suspicion can’t be reasonably explained away.
Undue influence and coercion
If someone’s bullied, coerced, harassed or otherwise forced into writing a Will a certain way (against their own wishes) then it could be contested on the grounds of undue influence and coercion. Bit of a tricky one, this. It’s almost impossible to prove for two reasons.
Firstly, appealing to the Testator, reminding them of any obligations they have to you, and saying things like ‘think of everything I’ve ever done for you!’ is fine. Morally it might be a bit dodgy, but legally it’s allowed. It’s only coercion if the Testator was literally forced to write a Will in a way that doesn’t match their wishes.
Secondly, coercion is a crime. It’s not the sort of thing anyone does openly and leaves any evidence of – it’s done behind closed doors, away from prying eyes. The only witnesses to it are normally only the (now dead) Testator and the coercer themselves. You need solid evidence to prove that the Will was written under undue influence.
There are a few red flags you might want to look out for. If the contents of the Testator’s Will:
- don’t match up with what they’d told you they’d planned to do
- are uncharacteristic of the Testator
- leave people out you know that the Testator had a good relationship with and intended to include
- benefit people that the Testator recently met and barely had a relationship with
then there’s the possibility it was written under undue influence or coercion. As I say, though, it’s normally pretty difficult to prove.
Forgery and fraud
If you can prove forgery or fraud then you’re laughing, ‘cos that means the Will’s invalid and you’ll have no issues at all contesting it. Well, you’re not laughing, because it’s a tragic situation and a serious crime has been committed. But from a contesting Wills mindset, you’re… well, I suppose you are laughing.
Forgery is where someone’s faked the Testator’s signature – it’s been signed in their name, but not by them.
Fraud’s more open and you’ve got more scope – I’ll give you some examples. Hiding (or destroying) the most up-to-date version of the Will so a previous Will is used instead? That’s fraud. Putting a Will forward when you know the witnesses signed it at a later date than the Testator? That’s fraud. Making a Will pretending to be someone you’re not? That’s fraud (and forgery).
The one all you Knives Out fans have been waiting for – the emphatically named slayer rule. A murderer cannot inherit from their victim’s estate.
Only the Americans call it the ‘slayer rule’, because, well, y’know. It’s America. In English law it’s just part of the not-so-excitingly named Forfeiture Rule.
But if you think the Testator has been murdered – whether by a Beneficiary or not – you’ve got bigger fish to fry than contesting Wills. You should probably (definitely) stop reading this article and call the police.
If you’ve read this blog and think you’ve got a case for contesting a Will then you should seek legal advice. Call the big guns in – get into contact with a solicitor, or a lawyer, and explain your concerns to them. They’ll be able to advise you on whether you’ve got a reasonable claim or not.
Now, we’ll end the blog by going back to your hypothetical dead father. You’ve looked at all of your options, and none of them are applicable. You know why? ‘Cos he wrote his Will through Vital Documents, who went out of their way to make the Will as airtight as possible.
Our special Will writers cover all bases. They go above and beyond to make sure there’s minimal, if any, chance of your Will being contested. We work with you to make sure that your wishes are crystal clear and they’ve got the highest possible chance of being carried out. Give us a ring us on +44 (0)330 229 0331, drop us an email at firstname.lastname@example.org or arrange a call with us – we’ve got you covered!