12 March 2020

Contesting a Will and how to protect yours

By Gerald Bloye and Fiona Hewitt, Hayes + Storr.

A family member, close friend, or loved one passes away and you find what you believe to be a clear error with their last Will in that it does not reflect the true intentions of the person making the will.

So what can you do about it? The starting point is that the law respects the wishes of the person who has died (“the testator”), even if the last will did not accord with what family and friends were expecting. However if you suspect that the deceased’s real wishes have not been followed, or that the will has not been made correctly, the will may be invalid and you could mount a legal challenge.

The grounds for contesting a Will include:

• Lack of testamentary capacity: this means that the testator making the will was not of sound mind when the will was created and signed. The testator must understand the full content of their estate and understand who they are choosing to include and exclude.

• Forgery and fraud: a will may be contested if there are valid grounds to suggest that it has been forged in some way.

• Undue influence or coercion: there may be a claim if the evidence suggests that the testator had been coerced by other persons into including in their will provisions that they would not otherwise have included.

• Failure to duly execute the will: the rules for executing a will are strict. The testator must sign their Will in the presence of at least two witnesses who are present at the time of signing. The witnesses must confirm that they have seen the will signed by the testator. If there is evidence to suggest otherwise then the Will may be rendered invalid due to lack of due execution.

• The Inheritance (Provision for Family and Dependents) Act 1975: a claim can be made by a person such as a spouse, partner or child for whom adequate provision should have been made in the will and was not.

Contesting a will can be a complex process and expensive in terms of legal costs. It is important that you act as quickly as possible when deciding to contest a will as stringent time limits may apply. In some cases, your solicitor may advise you to lodge a “caveat” which means that an official Grant of Probate cannot be issued and the estate, therefore, will not be distributed without your notification.

Making a watertight Will

When clients come to see us to prepare wills, they are often reticent to talk about family problems. Understandably, people are reluctant to disclose details of, for example, squabbling children, ungrateful grandchildren or long-standing rifts with siblings. However, it is very important that we are given all the relevant background information, so we can advise you properly about the distribution of your estate, the possibility of challenges, and what can be done to prevent them.

A disgruntled relative may be able to make a claim against the estate if they are left out of a will or receive less than they were expecting. If you tell us who they are and why they are being treated differently, we can minimise the chances of them succeeding. Detailed attendance notes on our files, confirmation of your mental capacity and confidential letters explaining your actions, will all help ensure your will is accurate and valid.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.

For further information on Wills, contact Hayes + Storr on 01328 863231 or email law@hayes-storr.com.

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