Around 20% of the nation would challenge a will of a loved one if they felt it was not fair. Even when someone’s wishes are clear and current, more than 12.6 million Britons would go to court to challenge them if they felt the division of assets was inappropriate, according to research conducted by Direct Line Life Insurance.
Are you concerned about the will of a loved one? This post is hoped to serve as a sign-post to some of the main challenges which can be considered.
1. Undue influence? If you think someone actually exerted influence over the person who made the will (testator) to make a particular will they otherwise would not have made, this can be a ground on which to challenge a will. This doesn't necessarily mean a gun to the head, but nevertheless Undue Influence can be difficult to prove.
2. Capacity? Rather than the common-sense view of family and friends of whether the testator had their wits about them, the question of whether someone has testamentary capacity can be a complex medico-legal question. A doctor will need to apply a legal test of whether they suffered a ‘disease of the mind’ when giving instructions for a will. If there is any doubt at the time a will is made, there is a ‘Golden Rule’ of a medical practitioner reporting on capacity. Some claims have been successful where a testator’s will changed over time and the Court held the ‘change of mood’ could not be readily explained.
3. Execution - there are strict requirements which must be met for a will to be valid. It must be in writing and signed by the person making the will in the presence of two witnesses and signed by those two witnesses. If in doubt you should speak to a professional as to whether the will is valid on this basis.
4. Knowledge and approval - when someone makes a will, they must understand their estate and the identity of the people who will benefit. So long as the will is executed correctly, there is a presumption they did understand it, but certain things can 'arouse the suspicion' of the Court such that it needs to be investigated further.
5. Reasonable financial provision for dependents and family - The Inheritance (Provision for Family and Dependants) Act 1975 is a piece of legislation which means certain classes of persons can challenge an estate if the Deceased has not made sufficient financial provision for them. Whether you are eligible to claim under this will require a technical analysis of both your circumstances, your relationship to the Deceased, as well as all others who stand to benefit from the Estate.
6. Estoppel? Its a funny word, but basically it means that the Court can force the Estate to honour a promise if: 1. the Deceased made promises about giving you an interest in land or a house, and 2. you relied on that and suffered substantial ‘detriment’ or disadvantage by doing so. The Court may then consider it unconscionable for the Estate to go back on that promise and order accordingly. These are very technical claims, but worth considering if the above ingredients are met. See our blog on estoppel and trusts of land.
If you are the one writing a will, you should also consider these claims and whether your Estate is likely to be disputed, in order to protect your Estate and ensure your wishes are carried out.
This article was written by Toby Walker, Dispute Resolution Partner at Allan Janes. Toby and his team have specialist expertise in the area of contested probate, trust and proprietary estoppel claims. Please do not hesitate to contact us for a free no obligation telephone discussion.