The answer depends on the circumstances, as Frances Woods, Civil Litigation Partner with QualitySolicitors Parkinson Wright in Worcester explains:
“Challenging a Will on the basis of undue influence is possible, but only if you can prove that there is no other reasonable explanation for your relative having made a Will in the terms that he or she did”
Gathering the evidence that you will need can be difficult. Any pressure put on a vulnerable person is likely to have been applied behind closed doors, for example by a family member, a close acquaintance or carer. You will need to think hard about the relationship and whether there is anything to suggest that their actions or decisions were being controlled.
Talking to a solicitor with experience of disputed Wills can help to flag up any warning signs to suggest that something may be amiss, such as the formation of an unlikely friendship or a change in living arrangements instigated by someone who now stands to receive a substantial inheritance in a manner that you were not expecting.
Every case is different, but the sorts of things that might set alarm bells ringing include evidence that your relative:
- Was fragile or unwell at the time the Will was made and therefore more susceptible to manipulation than usual;
- Made a Will that differed from what was expected based on what you knew and any conversations you had before their death;
- Made a new Will to benefit someone he or she had only recently met, had become heavily dependent on, or who was not provided for in a previous Will;
- Made changes to an existing Will to increase someone’s inheritance, perhaps to the detriment of others who had been promised they would be treated equally;
- Wrote the Will themselves rather than using a solicitor; or
- Had their signature to the Will witnessed by someone closely connected to someone who stood to benefit from it, including the person you now suspect of having applied pressure.
There needs to be evidence to satisfy a Judge in Court that your relative would not have made a Will in the terms that he or she did unless coerced to such an extent that his or her own wishes and judgement were overborne.
This is a big hurdle to overcome and, while not necessarily impossible, your solicitor will consider whether there are any other possible routes of challenge that might be easier to prove. This could include arguing that your relative did not know of or approve the contents of the Will, where for example there is medical evidence to show failing eyesight would have made it impossible for him or her to read it. Alternatively, it may be appropriate to argue that your relative lacked mental capacity to make informed decisions at the time that the Will was signed so it should be set aside as invalid. There are also other causes of action that can be pursued where a Will does not make proper provision for certain classes of people but this is a topic outside the scope of this article.
Whatever options are open to you, it is important that you seek legal advice early as there are time limits that apply when challenging a Will and in any event it is always preferable to do so when the evidence is “fresh”.
Seeking prompt advice will also ensure that steps to protect your position are taken. This can include registering a restriction with the Probate Registry to prevent your relative’s estate being dealt with until your concerns have been properly investigated.
If you need help to resolve a dispute about a Will, please contact our contentious probate experts Frances Woods, Mark Heath and Mark Blake on 01905 721600 or email firstname.lastname@example.org to see how they can help.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.