Contesting a will
If you are are relative or Beneficiary and are unhappy with a will, not seen a will or worried about the actions of a Administrator or Executor, we can help.
What to do first
If you are thinking about contesting a will, the starting point is always to try and obtain a copy of the will. Very often family relationships maybe strained and you may feel awkward about asking for a copy of a will, but ultimately a will becomes a public document once probate is issued, and therefore making a request is entirely reasonable. If you don’t want to ask, call us and we can can help.
Once you have the will, if you have been left out of the will, its important to then seek immediate legal help. Firstly, it is important to stop probate, whilst secondly there are very strict time limits that can apply to contesting wills and therefore it is important that steps are immediately taken so that you are not out of time to challenge a will.
Do I have a case ?
The Starting point in all cases is whether you have a legal basis upon which a will can be challenged.
Typically, we find the most common grounds are as follows :-
Lack of capacity to make a will
Sometimes wills are altered very close to someone’s death, despite the testator being very ill. The law when making the will is very clear in so far as the testator/testatrix must :-
- understand the act of making a will
- the effect of making a will
- nature of the property they have
- the claims on his/her estate of those whom he/she is benefiting and also those who maybe excluded
When faced with a case regarding a lack of capacity, we will always firstly obtain the will file, speak with the witnesses, whilst the medical records are often crucial in determining whether there are entries for conditions that may show a lack of capacity, for example dementia.
Issues with the will
For a will to be valid it must be signed, dated and witnessed by two witnesses.
Despite the law been very clear, we see a surprising number of wills that, have issues with the signature, for example it is infirm ( very frail ), it is not dated, the original of the will can not be found or is lost, or the will has not be witnessed correctly.
The Law relating to wills is contained in the Wills Act 1837 if the strict requirements of a will being executed correctly are not adhered to then the will could be invalid.
Broken promise claims
These cases arise when the deceased has provided a very clear assurance or promise which was relied upon by a person to their detriment. Examples, include where someone has worked on a farm for low pay with the promise that one day the farm would be theirs or alternatively when someone has paid the mortgage on a property with a promise that the property would be given or transferred to them on the owner’s death.
Claims for Financial Support
These claims are when either a will or under intestacy ( when there is no will ) no provision is left for the Claimant. Under Inheritance (Provision for Family and Dependants) Act 1975, a claim can be made for what is known as reasonable financial provision. When considering this question the Court has a wide discretion to award sums which it considers to be fair and reasonable having regard to all the factors in each case. The Act lists a series of matters which it must have regard to including the age of the parties, financial needs, the size of the estate, the circumstances of any claimants, any disabilities as well as any beneficiaries under the will.
Making a claim has to be made within just 6 months of the date of death and so obtaining legal help is really important.
These claims arise when the undue influence was exerted on the person making the will, to change or alter the will in favour of the person exerting the undue influence.
Establishing undue influence in wills is never easy, typically the cases arise when the deceased was elderly or frail, or dependant upon others. The onus falls upon the person alleging undue influence to prove their case.
Cases have shown that when considering undue influence common features are often apparent :-
- the vulnerability of the testator
- the dependency on others
- the involvement in others when making the will
- the significant shift in will making pattern of the testator
- unexplained reasoning for the change
- influencing personalities of others
If you believe a will was made the undue influence of others call us now. 0845 269 3571 or complete our online enquiry form.