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Contesting a Will

Sadly not everyone keeps their financial affairs up to date and for a variety of reasons I increasingly receive inquires from clients who want to challenge a Will. If a loved one has died and the contents of their Will come as a surprise, what should you do?

With an increase in the divorce rate amongst the over 55’s and many people subsequently remarrying or cohabiting with a new partner, it is important to make a new Will or review an existing Will as your life changes.

Occasionally people make Wills that 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, stepchildren 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 second reason why Wills are often challenged is because of changes which have been made or a new Will written, which excludes previous beneficiaries or when the person’s mental capacity is called into question.

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.

Your solicitor can enter a Caveat at the Probate Registry to stop the Estate from being administered in reliance upon the Will, which is being challenged.

Other valid reasons for disputing a Will 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.

A solicitor with the necessary expertise can assist you if you consider that you need to challenge a Will. 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 contact Anna Golding by email at a.golding@gullands.com or call 01622 678341 or visit www.gullands.com for details about how to make a Will. Anna Golding is an Associate Member of ACTAPS (Association of Contentious Trust and Probate Specialists).