What is the Burden of Proof When Contesting a Will?

| June 29, 2013

The death of someone close is a distressing time. It can be made even more upsetting if you find that the deceased person has not made the provision for you in their Will that you expected. It is possible, in certain limited circumstances, to contest the Will?s validity or the provision that it has made for the beneficiaries. In this brief article we will detail these circumstances and describe the process of proving that the Will should be overridden by the court.

When Can a Will be Contested?

The most straightforward challenge to a Will is where the legal formalities have not been complied with. A Will must be signed by its maker, the testator (or signed in his presence and at his direction) and witnessed by two independent people. The testator must also have sufficient mental capacity to make a Will. In other words, he needs to know that the document that he is signing is a Will, which disposes of his assets on his death. A challenge to a Will that is executed whilst a person is suffering from delusions or has a mental condition such as dementia, is likely to be successful. If the validity of a Will is successfully challenged, the testator will be declared to have died intestate. In this case, special rules determine how the estate is to be administered. This will normally mean that the estate will go to the next of kin.

Burden of Proof

Not all Wills are as complicated as this one!
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The second and more difficult basis for challenging a Will is on the grounds that the testator was unaware of and did not approve its content. This could be because the Will was forged, that undue influence was exercised or that the testator was coerced into signing the Will.

The Burden and Standard of Proof

Initially, the burden of proof will lie with the person who is challenging the Will. The burden of proof means the responsibility for proving the case that is being put before the court. In cases where there are suspicious circumstances surrounding the Will, such as where the sole beneficiary actually prepared the Will or where a nurse or other carer did so, the burden of proof can shift onto the person who is seeking to have the validity of the Will upheld.

The standard of proof that applies to a challenge to a Will is the same as that for almost all civil proceedings in the UK. This is known as the balance of probabilities. The person on whom the burden of proof rests must satisfy the court that it is more likely than not that the case they are bringing is proved.

Contesting a Will

Contesting a Will

Contesting a Will may result in a lengthy and expensive court hearing
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What Do You Do If You Want to Contest a Will?

If you feel that there might be grounds to contest a Will, the first step to take is to consult a solicitor as soon as possible. The solicitor will be able to advise you whether there are reasonable prospects that you will be able to satisfy the burden of proving that the Will should be overturned. You will also be advised about the length of time any court proceedings may take, the procedure itself, the evidence that will be required and the issue of costs. Most importantly, the solicitor will be able to lodge a caveat in the Probate Registry of the High Court, preventing anyone from disposing of any of the deceased?s assets pending the conclusion of any court proceedings.


Tips on Contesting a Will like in this article can save you both time and money. Will contestment can also be a lengthy and stressful experience, which may ultimately prove fruitless. However, if you are legally advised that you are likely to be able to prove that the Will is invalid, for one or more of the reasons set out above, you may feel that the risk is worth taking.


Image Credits:? Wikipedia 1 and 2

What is the Burden of Proof When Contesting a Will?


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