The short answer is yes, possibly. The long answer is more complicated. There are a few potential ways in which a Will can be challenged.
Lack of testamentary Capacity
This is when the person who made the Will lacked the mental capacity at the time of making it. This is a complex area and not as straightforward as you would think. There is a different test applied for Wills for mental capacity to most things that people do and it is slightly more rigorous. If the Will maker is found to have lacked the mental capacity to make a Will at the time they made it then the Will can be overturned.
There is no “silver bullet” which proves that someone lacked capacity, i.e. just because the person had dementia, it does not automatically mean the Will is invalid. The question will always be one of how bad that dementia was and how much the Will maker could understand.
In practice this is hard to prove, but if it is believed that the Will maker was influenced unduly into making the Will, then it is possible to overturn the Will on this basis.
Lack of knowledge and understanding the contents of the Will
This is not a very common challenge, but you might think that just because a Will was signed by the Will maker with Testamentary capacity and without undue influence, they understood it. However, there have been some cases where Wills have been overturned because the Will maker did not properly understand what was in it or what it’s effects would be.
The Inheritance (Provision for Family and Dependents) Act 1975
This little-known piece of legislation grants certain people a right to challenge the distribution of an Estate where it is not believed to be fair. The details of such a claim are too complex to go into detail here, but the people who have such a right are, spouses, children, anyone treated as a child of the family (which will include step-children), people who are of the same household as the Will maker (or intestate if they died without a Will) and lived together as husbands or wives (unmarried partners) provided they did so for at least 2 years prior to the death, and, finally, anyone financially dependent upon the deceased.
How much they could get depends upon many factors including how wealthy they are, how wealthy the will maker (or intestate) was and what provision, if any was given to them in the will (or according to intestacy rules).
What should you do if you are concerned that your Will may be challenged, or you would like to challenge a Will?
If you are concerned that your Will could be challenged, then you should contact a member of our Wills, Trusts and Probate team here at Hegarty Solicitors. Our expertise can make a massive difference to whether there is a successful challenge to your Estate after you die. Our involvement will mean that it is far less likely that anyone will be able to claim that you lacked testamentary capacity, or were unduly influenced at the time you made your Will, or that you didn’t understand it. This is because part of what you pay us for is to ensure that you are capable of understanding it, that no one has made you do it and that you do, in fact, understand what you are doing together with all the ramifications.
Whilst we cannot prevent any claim being brought under the Inheritance (Provisions for Family and Dependents) Act 1975, we can advise you of whether a claim seems likely, whether such a claim would be likely to be successful and what you can do to mitigate such a claim.
If, on the other hand, you are reading this because you wish to challenge a Will, please contact Andrew Hornsby, Partner in our Litigation team at Hegarty Solicitors. Andrew is an experienced litigator who regularly deals with both making claims against, and defending estates on all the above areas.Contact us