Contesting a Will
There can be many pressures put on the elderly to create a will that is partial or to change a fair one into one that no longer seems so. Not only can friends and relatives exert influence, but also charities have come under criticism over the pressure they can bring to bear on donors.
It is hardly surprising, therefore, that when the 'final will and testament' of many deceased people is revealed, its content can come as something of a shock, and hardly a day goes by without a story in the press concerning a dispute involving a will.
When Can You Dispute a Will?
There are four principal reasons why a will may be able to be successfully overturned:
1. The will has been improperly executed
Unless a will has been signed by the 'testator' (the person who wrote the will) in the presence of two witnesses who are not beneficiaries under it, it will not normally be valid. In a recent case, a will was ruled to be invalid because the signature of the testator was 'witnessed' by two people who were not present when it was signed.
Challenges on improper execution grounds are usually relatively straightforward as the evidence is normally factual.
2. The testator does not have 'legal mental capacity'
The testator does not have 'legal mental capacity' (i.e. their mental capabilities are not such that they can validly create a will)
The testator must be 'of sound mind' in order to create a valid will. This means that they must understand the effect of the will, must be able to weigh up the information used in determining the contents of the will, must be able to retain that understanding for long enough to make those decisions and must be able to communicate their decisions in some way.
There are many circumstances in which wills are contested on mental capacity grounds. When seeking to prove that a will has been created by a person who is mentally infirm, evidence of their mental capabilities at the time it was made (their subsequent mental capacity is not in point) will determine the validity of the will.
Challenges on mental capacity grounds depend critically for their success on the evidence that can be assembled regarding the mental capacity of the testator.
If you have a relative who intends to change or create a will who you suspect lacks mental capacity, obtaining medical evidence of incapacity as soon as possible is normally recommended.
3. The will was written as a result of 'undue influence'
A will is invalid if someone has sufficient power over the testator to the extent that they cannot freely exercise their independent will. These sorts of challenges are most common where a friend or family member ingratiates themselves with the testator to the extent that the testator loses the ability to think for themselves...which is usually followed by a new will in favour of the other person or someone connected with them.
Claims for invalidity owing to undue influence are often highly contentious and, again, depend heavily on the quality of the evidence that can be assembled. A will written under 'undue influence' is void.
4. The will makes inadequate provision
The will makes inadequate provision for a person who has been financially dependent on the deceased and who could reasonably have expected to benefit from it.
The Inheritance (Provision for Family and Dependants) Act 1975 allows a claim for financial provision to be made by a dependant of the deceased. This must normally be brought within six months of the grant of probate or letters of administration of the estate.
Successful defences of claims under this heading depend, in effect, on being able to show that the claimant was not a dependant. The legal effect is that the court will 'rewrite' the will to make whatever provision it deems appropriate.
What Happens if the Will is Voided?
If a will is declared void by the court, the last valid will written by the deceased will be admitted to probate. If there is no such will, the laws of intestacy will apply (https://www.gov.uk/inherits-someone-dies-without-will)
How Selachii Can Help
If you are concerned about any aspect of creating a will or the validity of a will that has been or is about to be created, take advice from us, without delay. If the testator is living, it may be possible to put things right or to assemble the evidence needed to challenge a will later on.
Selachii is a dynamic litigation law firm based in Kensington, London. We put the best interests of our clients at the heart of everything we do. We work with both businesses and private individuals, giving them legal advice and support which is unique to them and their situation.
We don’t believe in simply handing out one-size-fits-all solutions to problems. We will focus on your specific circumstances before working out the best and most cost-effective way of helping you achieve your aims.
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