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Challenging a Will

8.11.2012

When a person makes their Will they must be able to understand the nature of the act of making a Will, who they should consider leaving their property, possessions and money to and what property, possessions and money are theirs to bequeath.  They must not be suffering from any disorder of the mind at the time of making their Will that might cause them to be delusional and incapable of being rational, fair and just in all of the circumstances.

If there is evidence to show that at the time of making their Will a person was incapable of fulfilling these requirements then it might be argued that they lacked testamentary capacity.  The starting point when investigating such a claim would be to instruct a solicitor and obtain copies of the deceased’s medical records and possibly an opinion from the GP who treated them.  Ultimately, it may be necessary to obtain the opinion of an expert specialising in elderly mental care to evidence that the deceased did not have testamentary capacity.  It is likely that the solicitor will have to enter a Caveat at the Probate Registry to stop the Estate from being administered in reliance upon the Will, which is being challenged.

If there is no evidence of testamentary incapacity, either on the facts or after investigation, then in the absence of any other valid reason for disputing the validity of the Will, the Caveat should be removed so that the Estate can be administered. Other valid reasons for dispute might include a claim that the deceased was subject to duress when they made their Will. Whilst such claims do succeed, it is often difficult to provide sufficient evidence of duress to satisfy the Court and so claims of duress should be approached with caution.

Occasionally people make Wills which do not provide for people who they should arguably have had in mind at the time of making their Will.  A claim may be considered under the Inheritance (Provision for Family and Dependants) Act, which enables those who qualify to. bring a claim against an estate if they consider that they have been inadequately provided for or excluded altogether.  People who can bring claims under this Act include spouses, former spouses, co-habitees, children, step-children and anyone who was being “maintained” by the deceased immediately before their death.  When considering these claims, the court will take into account the size of the estate, the circumstances of the person who is making the claim and the circumstances of the people who will otherwise inherit.  They will take into account whether there are any special circumstances, such as the Claimant’s physical or mental condition.  A claim under the Inheritance (Provision for Family and Dependants) Act must be brought within 6 months of the Grant of Probate being issued.

A solicitor with the necessary expertise can assist you if you consider that you need to challenge an Estate.  If you wish to minimise the risk of your own Estate being challenged upon your death then you should ensure that you instruct a solicitor to prepare your Will for you, setting out your wishes clearly and in appropriate cases enabling a note to be prepared explaining why particular dispositions have been made or potential beneficiaries omitted.

If you think you may wish to challenge a Will and would like advice contact Anna Golding by email at [email protected]

For more information on the preparation of a Will or to review your current provision please contact Alex Astley by email: [email protected].

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