The subject of writing a Will has never been so topical, and given the circumstances of the coronavirus crisis perhaps we should not be surprised by the recent spike in enquiries by people wanting a Will reported by The Gazette.
An issue which is likely to increase in line with the number of Wills drafted is the number of Wills being contested. Family members can often believe there was a problem with the way the Will was written, that it does not truly represent the wishes of their loved one or that it fails to make adequate provision for their family and dependants.
There are many theories proposed for the rise in the number of Wills being contested, including:
Who can contest a Will?
Legally, anyone can challenge a Will, but typically it is someone who was involved in the deceased’s life, who may have been expecting to benefit from their estate, or someone looking after such an individual.
It is also important to note that, should a Will be proved invalid and there is no prior valid one, the rules of intestacy take over. This would mean that only family members will benefit, and if there is no surviving family the estate goes to the Crown.
If the challenge relates to lack of financial provision, the person contesting the Will needs to fit within one of the categories within the Act: a spouse, civil partner, or ex-spouse or ex-civil partner (not yet re-married), cohabitants, or a child, or someone raised as a child, or someone who is financially dependent.
Types of Claims
Whatever the relationship, the challenger must first ensure they have genuine legal grounds for contesting it, which might include:
Forgery – although rare, it is not unknown for Wills to be challenged on the basis that the document has been forged. Convincing a court that details such as the provisions of the Will or the signatures of the testator (the person writing the will) or the witnesses have been altered is difficult and will require definitive proof.
Lack of Capacity – one of the more common reasons for a Will to be contested. The definition for mental capacity used when considering this kind of challenge, states that the testator must:
If someone feels any of these conditions was not met when the Will was drafted, they may be able to contest it. Proving this in Court typically requires expert medical testimony.
Want of knowledge and approval – in order for a Will to be valid, the testator must have knowledge of its contents and approve of them. To contest that this was not the case, there has to be “circumstances that ought generally to excite the suspicion of the court”.
The party arguing the Will is valid, must then establish that the testator knew and approved of its contents. Issues that might arouse suspicion could include (but are not limited to):
Undue influence – when the testator is influenced to act at odds with their free will and/or without paying full attention to the potential consequences.
The party contesting the Will must prove there was coercion, bullying, verbal threats and assaults or persuasion through lies.
In most relationships it will be for the Challenging party to show that there was undue influence, however, in a limited number of circumstances that burden may be flipped and for the beneficiary to show that there was no such influence ever placed.
Lack of due execution – there are very strict rules surrounding the signing of a Will, which if not followed could result in the Will being invalid. There is a ‘presumption of due execution’ which means if the Will appears to have been executed properly, it is presumed it has unless proved otherwise.
The Will must be signed in the presence of two or more witnesses, each of whom must sign in the presence of the testator, although not necessarily in the presence of each other.
The trend for people to write their own Wills or use online tools has made claims of this kind more likely, as minor mistakes might slip through.
Lack of Adequate Financial Provision – whilst this is not a challenge to the Will itself per se, the Inheritance (Provision for Family and Dependents) Act 1975 allows for challenges where immediate family members (or individuals treated as such) and those dependent upon the testator are not adequately provided for. The value of the claim will depend upon the factors contained in the Act itself.
What is the process for contesting a Will?
If a person feels they have grounds to contest a Will, they should act as quickly as possible. Although a Will can be contested after probate has been granted, it usually results in a more complex and expensive case.
Once your solicitor advises your claim is valid, if Probate has not been granted the first step is to lodge a caveat with the Probate Registry office, which stalls the probate application process. Without a grant of Probate, the estate of the deceased cannot be distributed. If the Probate has been granted then Pre-Action Correspondence will have to be engaged.
In many cases, the claim may be resolved relatively quickly through negotiation or mediation, although if this is not possible a formal court claim must be submitted.
The team here at Ansons is experienced in all aspects of contesting and defending Wills, and are available and ready to advise on the appropriate actions. Please speak to Jason Alcock on 01543 267196 or by email at firstname.lastname@example.org
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