Challenging a will

What is happening

An elderly person had been ill for a long time and, a few months before death, signed a will in favour of a carer, a neighbour or the one child who lived nearby. The rest of the family is sure they no longer understood what they were doing. That has to be proved, not just felt.

Sometimes the procedure itself raises doubts: the will was certified by a hospital's chief doctor rather than a notary, someone else signed on the testator's behalf, or the property is described wrongly. Each of these is examined separately, and not every one makes the will invalid.

Beneficiaries under a will also come to us when relatives challenge their rights. The task is then the reverse: to uphold the testator's wishes, and the evidence is best gathered early, while witnesses still remember the details.

What the law says

• A will is a unilateral transaction. It can be declared invalid on the grounds that apply to transactions generally, and for breach of the rules on form and execution (the Civil Code).
• A will can be challenged only after succession opens, and only by a person whose rights or legitimate interests it infringes.
• The most common ground is that the testator, when making the will, could not understand the meaning of their actions or control them. The key evidence is a posthumous forensic psychiatric assessment based on medical records and witness statements.
• A will can also be challenged if it was made under deception, threat or a material mistake, or if the rules on signature, witnesses or signing on the testator's behalf were breached.
• Clerical errors and other minor irregularities in drafting, signing or certification do not invalidate a will if the court finds they do not affect the understanding of the testator's wishes.
• A claim to set aside a voidable will must be brought within one year of when the claimant learned or should have learned of the grounds; claims based on nullity, within three years.

What we do

• We study the text of the will, the circumstances in which it was made and the probate file.
• We collect medical evidence: case histories, discharge summaries and prescribed medication, including through court requests.
• We find witnesses who were in contact with the testator at the relevant time: neighbours, doctors, social workers.
• We frame the questions for a posthumous forensic psychiatric assessment and, where needed, a handwriting examination.
• We run the case in court and seek interim measures so that the beneficiary cannot dispose of the property before judgment.
• We represent beneficiaries when it is their rights under the will that are being challenged.

What we will need from you

• A copy of the will or details of the notary who certified it.
• The probate file and information on what the estate contains.
• The testator's medical records for the period before and after the will was made.
• A list of people who were in contact with the testator at that time, with their details.
• Documents proving kinship and your right to inherit on intestacy.