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What is the most successful way to contest a will?

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21/02/2019
Nearly a quarter of people would contest a will if they disagreed with how assets had been divided, according to new research with family law practitioners from Direct Line Life Insurance. 

The group found that the most common reason for contesting a will in the UK is ‘undue influence’, where someone has been put under unreasonable pressure to sign the will or make changes. However, according to legal experts, contesting wills on the grounds of ‘undue influence’ is difficult and petitioners are often unsuccessful. The person challenging the will has to prove undue influence and this is often difficult to do.

The most successful grounds for challenging a will is a ‘lack of knowledge and approval’, where it is argued that the deceased did not have the necessary knowledge to understand his/her will and that they did not approve the content. Here, the burden of proof if lower than for ‘undue influence’.

Other successful grounds for contesting wills include ‘testamentary capacity,’ where the mental and legal ability of a person to make or alter their will is challenged.  The third most successful grounds are for ‘rectification and construction’ claims. This is where a clerical error was made in the drafting of the will or the person drafting it failed properly to reflect the intentions of the testator.

Rising claims

The number of disputes regarding applications for probate increased by an estimated 6% in 2018 (figures supplied by HM Courts and Tribunals service). Brits are spending in excess of £160,000 a year on this process before the cost of any legal fees.  In 2017, there were 8,159 caveats registered to block a grant of probate – the usual method to dispute a will.  Brits are registering caveats for such concerns as whether the will is legal, whether the deceased was of sound mind (mentally competent when the will was made), or as a result of disputes over who applied for a grant of probate.

Jane Morgan, business manager at Direct Line Life Insurance, commented: “While our research reveals people are increasingly contesting wills, everyone has the right to choose how they’d like to distribute their assets, even if it seems unusual or excludes even the closest family members.  People can be surprised and hurt by the contents of a will, so people may wish to discuss with beneficiaries and those that might think they would inherit, how they plan to distribute their assets.”

 

Table two: Legal grounds for contesting a will

Rank Most common grounds for contesting a will Most successful grounds for contesting a will
1 Undue influence Lack of knowledge and approval
2 Lack of knowledge and approval Testamentary capacity
3 Fraudulent wills and forged wills Rectification and construction claims
4 Lack of valid execution Provision for family and dependents
5 Testamentary capacity Lack of valid execution
6 Rectification and construction claims Fraudulent wills and forged wills
7 Provision for family and dependents Undue influence

Source: Direct Line Life Insurance

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