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Contesting a Will

Grounds for Challenging the Will

Lack of legal formalities – S9 of the Wills Act 1837, no will shall be valid unless it is in writing and signed by the person making the will with two people witnessing their signature.

Lack of testamentary capacity -  where the person making the will did not understand that they were making a will or, the effects that the will would have upon their property and who would receive it after they had died.

Lack of knowledge and approval – where the person making the will didn’t know what was in the will and didn’t approve the will that was made.

Fraud or undue influence - where the will was made by someone else who had portrayed themselves as the person that was entitled to make the will or, where there is evidence to show that a person had taken advantage of a position of power over a person making a will and had used it to unduly influence them in the preparation of the will.   

Subsequent revocation - where it can be shown that there was a later will or that they had married after they made the will.

Proprietary estoppel - where the person that made the will failed to keep a promise that they made to you (which you had relied upon to your detriment) to leave something to you in their will.  

Constructive trust – where the deceased tried to make a gift of property that does not belong to them because it is already been placed in a trust.

Debt – where the deceased owed you money.

Inheritance (Provision for Family and Dependants) Act – where the will did not make any provision for you at all or, if it did, that provision was not reasonable.   

Who can Challenge a Will

It will generally be family members.

  • A beneficiary under an earlier or later will.
  • A person who had been promised something that was then left by the person that had made that promise to someone else in their will.
  • Someone that owns property that is now being gifted to someone else in the will.
  • Someone who was owed money by the deceased.
  • Someone who married the person after they made the will.

 

How Much Time do I Have to Challenge a Will?

Different time limits apply to different causes of actions. Therefore, it is essential to seek legal advice as soon as possible in order to ensure that you are not too late to make a claim.

Challenging the validity of the will - There is no strict time limit that applies. However, parties are expected to avoid delays and to present their claim as soon as reasonably possible.

Inheritance (Provision for Family & Dependants) Act 1975 - There is a strict 6 month time limit for making a claim for provision to be made. The time starts to run from the date when the Grant of Probate (which is required to administer the estate) has been issued by the Probate Registry.

Fraud - There is no time limit in cases that involve fraud.  

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