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What evidence do you need to contest a will?

September 22, 2021

There must be a justifiable legal question about the will for a contest to be contemplated in the eyes of law. A person cannot simply contest a will because they dissent with it, were left out of it, or are hurt or furious about the will’s contents.

A person needs a piece of concrete evidence for contesting the will on legal grounds. More than 90 percent of the will pass through without being contested, but a person having an interest in the will can contest it and if he/she is successful in convincing the court, then it can be declared void in its entirety or part.

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What are the grounds on which a will can be contested?

There are the following grounds or evidence based on which a will can be contested by a person:

  1. Lack of due execution
    In the case of a registered will, a valid will has to be in writing and signed by the testator in the presence of two witnesses and such will must also be attested by the witnesses. If this process is not followed, then the whole intention of making the will is disrupted, and a will can be contested in the court of law.
  2. Lack of testamentary capacity
    It is required by law that a person above 18 years or above can create or form a will. The testator while forming the will have the ability to understand the nature of the act and its effects, comprehend and assimilate the claims to which he ought to give effect, and acknowledge the extent of the property of which he is disposing. The testator should be in the right sense of mind i.e. his decision should not be influenced by the insane delusion or any mental disorder. He should be of sound mind while disposing of his assets in the will. The absence of such a testamentary capacity attracts the aggrieved party or person to contest a will in the court of law.
  3. Lack of testamentary intention
    When a testator has not intended to make a will, however, the will have been formed by mistake or threat, or when the contents of the will were not intended by the testator, in such a case a will is liable for a contest by the person because it is the desire of the testator which needs to be executed and any element or provision in the will is against the testamentary intention of the testator, the same can be contested in the court of law.
  4. Fraud or Forgery
    Fraud is an unlawful act by which the testator has been induced to create a will through a wilful mistake by the other party or a third person. Here, the consent of the testator in forming a will is not free and it has been obtained by fraudulent act i.e. through deceptive actions by the fraudulent entity.
  5. Undue Influence
    Wills procured by undue influence are unenforceable and restitution must be made of any benefits obtained under it. When the will is made in the context of a relationship involving high levels of trust and confidence, so there is a possibility that the consent is not voluntary and a will can be contested by a claimant on the evidence that the consent of the testator was coerced. If there is no direct proof of undue influence, an inference of undue influence can be drawn by court from the evidence that the claimant was in a ‘relationship of influence’ with the defendant, and the transaction related to will is one which ‘calls for explanation’.
  6. Lack of sufficient witnesses
    In the case of a registered will, its authenticity can be proved only when it is signed by the testator in the presence of at least two major witnesses. This requirement is mandatory and the absence of this, will question the legitimacy of the will and a will can be contested in the court of law. It is also held by the various court that the witnesses should not be the legal heirs of the property. Also, the handwritten wills must be written and signed by the testator in entirety, and dating of such wills is mandatory.
  7. Revocation or Claims by family
    A will can also be contested on the evidence that a close relative or friend was not provided adequately by the will. As provided by the Hindu Succession Act, the head of the family is responsible for the proper maintenance of certain close family members who have been mentioned in the Act. An aggrieved member who is not adequately provided for by the laws of intestacy can contest the will in the Family Court or the High Court asking for the same provision.
  8. Lack of Knowledge or Approval
    When the testator was not aware of the fact that the will is signed or doesn’t know about the contents of the will, then in such case a will can be contested if the evidence of such ignorance can be presented before the court.
  9. Other grounds
    A will containing any element of suspicious nature can be contested if:
    • There is an execution of two will at the same time, the first being designed vaguely or indefinitely and the other supplementing it.
    • There is a purchase of several stamps for writing out the will.
    • There are too many thumb impressions, thereby confusing all with one another.
    • Property is given to someone who is not remotely close to the testator.
    • The will is executed in the hospital, and the same was not mentioned in the will.          
See this also: Can a surviving spouse contest a will?

Evidence used for contesting a will

After the death of the testator, you discover that it contains provisions that are the cause for concern, at that point, a direct testimonial of the testator is no longer available, then other forms of evidence can help you in building a successful case to contest the validity of the will. The shreds of evidence that are used to prove the above grounds are the following:

Letters and other documents
You may not be able to contact directly to the testator to establish what was going on at the time he or she made the will you are looking to contest, but there may be other documents that contemplate his or her intentions, state of mind or other concerns at the time the will was made. A diary or journal that was kept by the testator can potentially disclose several things relating to different ways of contesting the will. This will help to reveal the state of mind of the testator. The documents could mention bullying or other behavior by a person concerning the will in a particular way. It could also disseminate what a testator’s true intentions were about how his or her estate should be distributed.

Medical notes
If you are seeking to contest a will because the testator did not have the mental capacity to make the will then medical notes are particularly relevant as they may reveal whether or not the testator was suffering any illness or condition at the time he or she made the will and the extent to which this condition might have influenced the testator’s understanding of what he or she was doing.

Witness statements
Another important piece of evidence will be the statements of people or witnesses who knew the testator at the time the will was made and beforehand. Examples of useful witnesses will include:

  • The solicitor or attorney who drew up the will.
  • The people who witnessed the will in making.
  • People involved in the care of the testator (if relevant) at the time the will was made like any caretaker, nurse, or family member.
  • People who knew the testator and can provide information about his or her state of mind when the will was made, what their behavior was like before or after forming the will.
  • People who have known the testator in the past and could testify about the testator’s intentions regarding his or her estate.
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What precautions should be taken to avoid a contest?

To prevent a contest to your will following precautions can be taken:

  • Make sure your will is executed properly and take all the precautions suggested by your attorney to avoid any chance of the contest.
  • Talk to your heirs while distributing your estate, so that nasty surprises can be prevented and they understand your reasoning.
  • Express loving thoughts and emotions to your heirs so they have a clear idea that you love them and the reason behind the disposition of the property.
  • While disinheriting any of your children, grandchildren, or other relatives, most states will not allow you to completely strike your spouse out of your will. If you do so, the court will award a right of election to the spouse to take a certain percentage of your estate, so it is best to plan this for yourself.

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About Author

Shaily is a law student, pursuing B.Com LLb. (Hons) from University Institute of Legal Studies, Panjab University.

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