How to Contest a Will and Why
When families have a Will dispute it can be for a variety of reasons, from being left less than was expected to or being left out of it completely, which may seem unfair. However, a Will can be contested and this is when the advice of a specialist Inheritance and Will Disputes solicitor is paramount, as a recent case exemplifies.
Will Dispute Case
A sister was left out of her brothers Will and it was found to have not been signed properly, witnessed by only one person and parts of it were crossed out. It led to a subsequent family rift, the Will was rendered invalid and so the brother died intestate with the associated inheritance tax issues for his children.
What this case highlights are the dangers of not drafting a Will properly, or consulting professional solicitors to obtain advice after the event.
What is needed for a will to be valid?
For a Will to be valid it has to be signed by the testator in the presence of two witnesses, although during the pandemic and since, virtual signings have been acceptable. In addition, Wills have been witnessed through windows, across garden fences and by neighbours with many people wanting to ensure that their affairs are in order, during the pandemic.
“There is always confusion about contesting a Will and often people do not like to upset family members. I would always advise that you would consult a specialist solicitor in preparing your will and to make sure it is detailed and correctly executed in the first place, making sure you dot the i’s and cross the t’s,” said head of Inheritance and Will Disputes, Laura Pracy.
“However, there are always occasions when things may not have gone the way you would have expected and there may be circumstances when you may wish to contest a Will or bring a claim against the estate if the Will fails to make reasonable financial provision for you.
There are two things to consider when doing so - the validity of the Will itself and whether or not you have a claim under the Inheritance (Provision for Family and Dependants) Act 1975,” she added.
How to check if a Will is legal?
A Will must have been made by someone who:
- is 18 or over
- has made it voluntarily
- must be of sound mind
- has made it in writing
- has signed the Will in the presence of two witnesses who are both over 18 years old, and as per a recent court ruling, this can be done virtually
Any changes to your circumstances should also be recognised in your Will. If you have been married, divorced, had children, moved house, if your financial situation changes or something happens to your executor, then changes to an already executed Will may be needed.
When can a Will be contested?
A Will can be contested under the following circumstances:
- if it was not properly executed,
- if the person who made the will lacked capacity at the time of making the Will,
- if the person who made the will was unduly influenced in making the will in the terms they did,
- if the intentions of the person making the Will were not properly carried out i.e. they did not have full knowledge and approval of the will; or
- if the Will is a forgery
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Contesting a Will and getting information on a contentious probate issue can often be an emotional time, but we are trained and use to dealing with these cases in a professional and supportive way,
In these cases, however, I would urge anyone not to delay for too long. It is important to act quickly as an estate can be distributed once a Grant has been obtained and further, any claim under the Inheritance Act must be brought within six months of the date of the Grant” advises Laura Pracy.
Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers Ltd or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.
This blog was posted some time ago and its contents may now be out of date. For the latest legal position relating to these issues, get in touch with the author - or make an enquiry now.