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.
 |
Anna Golding. |
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).
Gullands Solicitors
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