Contesting a Will
If you are a family member or disappointed relative unhappy with a will we can help you. We act for clients across the UK with Inheritance disputes and are one of the very few firms to genuinely specialise in contesting wills.
Whatever the problem we will try and help you, we have a proven track regard in successfully acting for clients in contesting wills, so call us 0844 740 1637 to find out how we can help you.
A Guide on contesting wills
The starting point is to obtain a copy of the will, the will, will be typically be with a solicitor, the executor or family relative. If for whatever reason there is a refusal to disclose a copy of the will, then a Caveat may be able to be placed on the estate. This involves an application to probate registry and prevents probate from being issued for a period of 6 months, and therefore enables some time for a detailed investigation surrounding the will preparation to be undertaken. Often the issue of a Caveat is sufficient for a will to be disclosed.
Typically once we have a copy of the will, we then seek information regarding the background of the will. For example, who instructed the solicitor, who was present ? did the solicitor check on the capacity of the testator when making the will ? often a full review of the solicitors file is necessary to understand fully the background of the will. Once these investigations have been undertaken, we can the advise on the merits of contesting the will. The most common grounds to dispute a will are :-
Invalid wills : is the will correctly executed ?
The law governing wills provides for a will to be valid it must be :-
- In writing and signed by the person making the will
- The person making the will intended by his signature to give to the will
- The signature must be made in the presence of at least two witnesses
- Both witnesses must be present at the same time as the will being signed
Common problems with wills
Despite the formalities of wills being clear we regularly see a variety of problems arising in that :-
- Wills are not signed correctly in the right place
- The witnesses may have been beneficiaries under the will
- The original of the will has been lost
- The will has writing on it
- The witnesses have signed at different times and not in the presence of the person making the will
- The wrong wills being signed in error
- Lack of capacity on the person making the will ( see below )
- The Witnesses may not have witnessed the testator signing the will at the same time
Specific Grounds to Contest a will
Typically, once a will has been obtained, we find the majority of claims against estates fall into the following categories :-
Claims for financial provision under the Inheritance Act 1975
The Inheritance Act 1975 enables certain classes of persons to apply to the Court for reasonable financial provision.
The persons able to make a claim are restricted and typically, involve spouses, ex-spouses, Co-habitee, Children or Persons that were in some way financially reliant upon the Deceased.
In summary, the Court has a wide discretion to award sums which it considers to be fair and reasonable having regard to all the factors in each case.
The Act lists a series of matters which it must have regard to including the age of the parties, financial needs, the size of the estate, any disabilities of the parties, assets of the parties as well as the level of support that was provided by the Deceased prior to their Death.
Lack of Capacity by the Deceased to Make a Will
In all cases the person making the will, must :-
- know he/she is making a will
- understand what property he/she has and who will inherit
- have the capacity to understand that he/she is making a will
Typically, when contesting a will on a lack of capacity this will frequently, involve a detailed review of the preparation of the will, and the deceased’s medical records, to see whether there are references to any medical conditions that may impact on the deceased’s ability to understand that they were making a will, for example dementia. Very frequently we see wills changed before the date of death when the deceased may have been very vulnerable.
These claims arise when the testator has effectively been forced into making a will.
Forgery or Fraud
Typically, these claims arise when the will is a forgery ie. the testator may not have signed the will
Proprietary Estoppel Claims ( otherwise known as Broken Promise Claims)
Claims when the deceased may have made a promise or assurance to leave financial provision which was relied upon often to the determinant of a person who in turn suffers a clear loss.
Whatever your concern with a will, let us help you. As experienced solicitors in this area it is important not to presume anything call us now on 0844 740 1637