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Wills Disputes

Challenges to a Will

During a period of heightened emotion, it can come as a shock to discover that the Will may not distribute the estate as expected.  This may have been a considered choice by the deceased and properly reflect their wishes, in which case they may well be honoured, but in some cases there may be reason to challenge this.

If you have the original Will check the validity

If you have the original copy of the Will (with their original signature, not a photocopy), then this may still not be valid.

Under English Law, a Will must be:

i) Signed by the person making the Will

ii) In the presence of two independent witnesses (not beneficiaries)

iii) Those witnesses also sign, in the presence of the person making the Will

If any of these did not occur it may be invalid.

Mental capacity

The person making the Will (“the testator”) must have sufficient mental capacity to do so.  This means that they need to understand what is within their estate.  They also need to understand the contents of their Will and who they are leaving their estate to.

Undue Influence

There should be no question of undue influence on the person making the Will, if there is it may not be valid.  This is usually the “hunch test” that family members have; an impression that another family member may have influenced the testator in some way.

Thinking about challenging a Will?

i) You can only dispute a Will after the death of the testator

ii) You cannot challenge a Will simply because you perceive it to be unfair; you need to have a claim (either that it is invalid as above, or a claim under the Inheritance Act)

iii) The effect of a Will being invalid is that the estate will be administered under the intestacy rules.

iv) This is a formal dispute; whilst we will deal with any grievance professionally, it is a sensitive issue for families to deal with.

Practical steps

A Will is a private document and only becomes a matter of public record once Probate is applied for by the executors.  At this point, the Will is presented to the courts.  You may need to take steps to protect your position before you can check the Will itself.  It may be possible to seek an order for the Will to be disclosed prior to Grant of Probate, if there are sufficient grounds to challenge the validity.

In most circumstances, the first step to take is to register a “Caveat” to stop the Grant of Probate (if Probate is granted the estate can be distributed) and at the earliest possible opportunity. This can be done quickly and inexpensively, and provides you with the time to consider your options.  You can also register a request that you be notified when Probate is granted.

If you would like to speak to a member of our litigation team about a Will dispute please contact us today to arrange a free 30 minute consultation.

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