When making your Will, you want to be sure it does what it’s supposed to do – protect your family and assets when you’re no longer around. That’s why it’s important to understand the most common ways a Will can be left open for contention and how to mitigate the chances of it happening to you. Your Will should be a legally binding document, and therefore it needs to be written and formalised in such a way that it is valid and will hold up in court if it is ever called upon. In this guide, we’ll discuss the ways in which a Will could be contested, and how to protect your document from a successful challenge.
How Could My Will Be Contested?
Your Will can’t be contested simply because someone deems it to be unfair. There are six main grounds for contention, which we’ll explain below, and in these cases the courts may consider the overturning part or all of your Will.
‘Lack of due execution’
The word ‘execution’ in this context relates to the making of the Will, not the carrying out of the Will. Your Will must be in writing and it must be signed and witnessed correctly otherwise it could be invalid. To learn how to sign and witness a Will read our guide, ‘Who Can Witness and Sign My Will?’
‘Rectification and construction’ Your Will must be written accurately and include the correct instructions, clauses and terminology to carry out your wishes. If there are mistakes, or if wording or information is left out which makes the instructions ambiguous or unclear, the courts may have to step in.
‘Lack of testamentary capacity’
You must have sufficient mental capacity to make a Will. This includes being of sound mind and understanding the effect of the Will, the value of your estate, and the consequences of your instructions.
‘Lack of knowledge and approval of the Will’
You must understand the contents of your Will and approve the instructions within it. Even if you have sufficient mental capacity to make your Will, if you are not aware of certain gifts or instructions when you sign it, and/or these are deemed to be suspicious, this may be grounds for contention.
‘Undue influence or duress’ It’s important that you make your Will of your own accord and that you’re not influenced by anyone else when deciding your instructions. If you are, your Will may be contested, but only if the claimant can provide substantial proof that you were pressured into making certain decisions.
‘Fraud or forgery’
If a Will is made under fraudulent circumstances this is certainly ground for contention. This can involve a forged Will and signature, or it could involve lies being told to the testator to influence their decisions regarding certain beneficiaries or instructions.
How Can I Prevent My Will from Being Contested?
It may not be possible to completely shield a Will from the possibility of being contested, but understanding the grounds on which a Will can be challenged should put you in a good position. To better protect your family and assets from a possible challenge, it’s highly recommended you have your Will written by a professional Will writer. Our Will writers have the necessary experience and qualifications to ensure your Will is written, signed and witnessed correctly, and that no instructions or clauses are left out that could lead to it being contested successfully.
The Bottom Line
Your Will could be contested on several grounds, such as mistakes or ambiguity, lack of due execution, lack of mental capacity, or a lack of knowledge regarding the contents and instructions. Using a professional Will writer minimises the chances of a successful challenge, because he or she will ensure you fully understand the contents and implications of your Will, and the correct procedures for writing, signing and witnessing it. Your Will writer also has the necessary experience to write a legally binding document that is designed to hold up in court across all scenarios.
At Michael Usher Wills & Estate planning we’ve been helping our local community for over 30 years. We’re regulated members of the Institute of Professional Will Writers, so you can be confident that you’ll receive a high-quality Will designed to protect your family’s future. Our friendly team is always happy to chat with you for free about your Will and answer any questions. Call us on one of the numbers below or book your FREE consultation here. We look forward to helping you protect your assets, your family, and your legacy.
Camberley: 01276 691979
COVID-19 Update
You are more than welcome to come into our office, but we can also make your Will remotely if you’d prefer – please read the article below to find out how this works.
