The Difference Between Challenging and Contesting a Will

Contesting a Will and challenging a will are two very different things. Contesting a Will is when you have been left out of Will, or feel you have been treated unfairly by the Testator within their Will. Therefore you launch a family provision claim.

To challenge a Will is to dispute a Will, or to say that the Will itself should be struck out. These types of cases usually arise when the person who made the Will was suffering from a mentally degenerating disease, or they were put under pressure to change their Will.

When can you Challenge a Will?

The most common challenged to a Will occur because:

  • The Will-maker did not have the capacity to make the Will at the time it was signed;
  • The Will was the subject of fraud, forgery or made under the influence of others;
  • There was an insufficiency and inappropriateness of witnesses to the signing of the Will;
  • The Will was left unsigned;

Testamentary Capacity:

  • Only adults 18 years or older have the capacity to create a will (however in some jurisdictions minors in the military or are married have the right to make a Will)
  • Adults are presumed to have testamentary capacity. It is only challenged in cases of dementia, insanity, under the influence of a substance or if they in some other way lacked the mental capacity to form a Will.
  • To Dispute a Will based on mental capacity, must be able to show that the Will-maker did not understand the consequences of making the Will at the time of its creation.

Fraud, Forgery, and Undue Influence

  • This usually involves someone manipulating the vulnerable person into leaving all or much of the property to the manipulator.
  • ‘Undue influence’ merely means that the person lacked the free Will to make their own decisions or to bargain because of the manipulator
  • As a result, the ‘Will’ becomes a document which does not record the true testamentary wishes of the Will-maker and thus will be found to be invalid.

Sufficient and Appropriate Witnesses

  • The Will must be dated and signed by the Will-maker in the presence of at least two adult witnesses. If this does not occur the Will could be void for incompleteness

Unsigned Will

  • An unsigned Will, in most cases is found to be invalid as it does not adhere to the requirements for execution of Wills as depicted in the Wills Act 1997

For the exceptions to this rule see the Page on whether an unsigned Will is still valid.

How do you Challenge a Will?

If you are wanting to Challenge a Will, the first step is to get in contact with a legal professional. They will often get a probate caveat placed on that Will. A probate caveat ultimately stops the executor(s) or administrator(s) of the Estate to administer the assets until a decision has been made about the validity of the Will; the caveat runs out; or is withdrawn by the caveator.

Once the caveat is placed on the Will it is then for you to plead your case to the courts as to why you think that Will should not be the last valid Will of the testator.

If successful, that Will would be struck out and you would file for probate of the previous Will. Alternatively, if there was no previous Will, the Estate would be divided according to Intestacy Law.

If you have any queries, our Challenging a Will FAQs are a great place to start.

Alternatively, if you have a Will which you believe should be challenged, do not hesitate to contact the team at Hentys Lawyers today!