cost information and timeline

Contesting a Will

A Will records a person’s final wishes. It sets out what they would like to happen to the things they own once they have died. And, being a formal legal document, it should be put into effect when the time comes. After all, if a Will-maker cannot count on terms being carried out, why make a Will at all?

That general position can have some unexpected consequences. As Wills are usually a private matter between a person and their solicitor, family members are often in the dark about their inheritance until the Will is read. By then, of course, it is too late to raise any issues with their relative. It can leave families that have been taken by surprise by the terms of a Will perplexed – and in some cases, in turmoil.

As Wills and Probate solicitors, we have advised on plenty of difficult Wills-related issues, from a family-member having been left less than they had anticipated, to situations in which a deceased’s assets have been earmarked for a seemingly random party (yes, people really do leave everything to cats’ homes). While some relatives will accept the outcome on the basis that it was what their loved one wanted, others may be more inclined to dispute the terms. Perhaps that’s on the basis of perceived injustice. Or maybe they suspect that something untoward has gone on.

It is perfectly possible for the terms of a Will to be changed retrospectively, as a result of a legal challenge. However, as you would expect, there are strict limitations on when and by whom such a challenge may be brought.

Only certain categories of people can contest a Will: a blood relative; a spouse; someone who was financially dependent on the deceased; a beneficiary under an earlier Will; a creditor of the deceased’s estate; or a person who had been promised something by the deceased.

Entitlement is the first hurdle. The second is showing a proper legal basis for challenging a Will. A disgruntled relative cannot simply complain that they don’t like the way that assets look set to be distributed. They would need to point to one of the following grounds:

  1. Invalidity

The Will was not prepared correctly. For example, it was not properly witnessed or signed.

  1. Lack of capacity

The deceased did not know what they were signing, or didn’t understand the terms or effect of their Will. A common line of argument is be that he or she was not of sound mind – perhaps suffering from a mental condition – when they made the Will.

  1. Undue influence

The deceased was pressured or coerced.

  1. Forgery or fraudulence

It is not unknown for an entirely made-up Will to have been constructed, or for the deceased’s signature to have been forged.

  1. Negligence

The deceased’s lawyer was at fault in preparing a Will that does not accurately, clearly and unambiguously set out the deceased’s wishes. It is also possible to bring a claim for rectification of a Will where the problem was caused by a clerical error.

In addition to those grounds for challenge, an eligible person who feels that the Will does not make reasonable financial provision for them may be able to bring an inheritance claim. They may feel aggrieved that they have been left out of the Will entirely, or that they have not been left enough money/assets to live on.

Those types of inheritance claim are typically brought by husbands, wives, civil partners, and children. However, it’s an avenue also open to:

  • a former spouse or civil partner who has not married or entered into a civil partnership since the deceased died;
  • a person who lived with the deceased as a spouse or civil partner for at least two years before his or her death;
  • a child who is not a blood relative of the deceased (a adopted child or step-child, for example);
  • a person ‘maintained’ by the deceased.

Our advice to anyone who feels uneasy about a loved one’s Will is to explore the possibility that something went wrong along the way. Talking to specialist Wills and Probate lawyers like us does not commit you to taking any formal legal steps to challenge the Will. In fact, we only ever suggest bringing a claim where that is the only route to resolution (and in many cases it’s not necessary).

The important point to remember is that whether you are worried that a Will does not reflect your deceased relative’s wishes, or you feel that you have not been adequately provided for, you do not necessarily have to accept that position. There may be things you can do – collectively or individually. And, as part of making a successful outcome our priority, lawyers like us handle cases sensitively so as to help preserve those important family relationships.

Strict time limits apply to Will dispute claims, so get advice as soon as you can.

 

Call us now on free-phone 0808 1961512 for a confidential and no obligation initial discussion or email info@thomasmansfield.com.