Challenging a Will – Process and Grounds

If you are considering challenging the validity of a Will, after registering a caveat, if appropriate (See Challenging a Will – Caveats – Blaser Mills Law), the next thing to do is to obtain a copy of the Will and assess whether or not you have a ground for challenging the same.

Do you have a copy of the Will?

It is not uncommon for executors or their representatives to withhold a copy of a Will. There is no obligation to provide a copy of a Will to beneficiaries before making an application for probate.

There is a formal request which can be made to obtain a copy of the Will and the Will file which is called a Larke v Nugus request and derives from a case of the same name.

The request asks for a copy of the Will file, if available, which should (but often does not) contain all of the contemporaneous attendance notes. While a solicitor is not legally obligated to respond to a Larke v Nugus request, the courts expect compliance in order to facilitate the resolution of will disputes and prevent costly litigation.

Challenging the Will

Once you have a copy of the Will and possibly the solicitor’s Will file, you can make an assessment and decide whether you have a strong case for challenging the same. You can challenge a Will on the following grounds:

1. Lack of proper execution, i.e., the Will was not signed or the Will was not witnessed by two people or at all, not dated etc.
   
2. Lack of testamentary capacity – the person making the Will did not fully appreciate the effect of what they were signing as they lacked mental capacity, usually due to a disease of the mind.
   
3. Undue Influence –while suggesting someone make a decision in relation to their Will is not inherently unlawful, undue influence crosses the line into coercion and exerting power on the other person to the point that it forcefully impacts their decision making.
   
4. Fraudulent Calumny – this is an archaic way of simply describing fraud in relation to a Will. Usually, two or more persons have conspired to make a false Will on behalf of the Deceased.
   
5. Lack of knowledge or approval – where the person making the Will has mental capacity to make the Will but is not aware of the full effect of the content.

Of the above grounds point one is usually fairly easy to establish as it is a simple case of reviewing the Will to ensure everything is in order.

The second ground is more difficult to prove and may involve writing to the deceased’s GP to request their medical records. This can help build a better picture of the deceased’s capacity, particularly towards the end of their life. It will then be for the person challenging the Will to highlight any areas of concern in respect of capacity.

The third, fourth and fifth grounds are notoriously difficult to prove and often hinge on the evidence to hand or ultimately the decision of a judge at trial. The person making the allegation may not have much direct evidence, forcing them to rely on witnesses which can be fraught with difficulty.

How can Blaser Mills’s Private Wealth Disputes Team help?

At Blaser Mills we understand the stress caused by lack of information or suspicious circumstances surrounding a Will and are here to help. If you would like to discuss instructing us to act for you, please call the team on 01494 788998 or get in touch by email at litigation@blasermills.co.uk.