Problems can arise when a deceased's Will does not provide for those that one might have expected the deceased include in their Will or the Will is badly drafted and difficulties are consequently created. We can help diagnose the problems, what the legal position is and the way forward in dealing with the matter.
Challenging a Will
There are a number of grounds upon which you can challenge the validity of a Will:
(1) Lack of due execution
If the Will has not been correctly executed in accordance with the Wills Act 1837 it is invalid. Issues with execution can be that the Will was not correctly signed by the person making it, or there are issues concerning the two independent witnesses to their signature.
(2) Lack of capacity
If the person making the Will did not have mental capacity then they are unable to make a valid Will. They must be capable of understanding what the terms of the Will are and the extent of their estate. A person making a Will may lack capacity because of some illness or condition e.g. Alzheimer's or other forms of dementia.
(3) Lack of knowledge and approval
If the person making the Will did not understand or approve of the terms of the Will they are signing, it may invalidate the Will. If there were suspicious circumstances surrounding the making of the Will, or if the person making the Will was deaf or blind, the burden of proof falls to the person applying for probate to demonstrate that the person making the Will did understand and approve its contents.
(4) Undue Influence
While people making Wills are often influenced by the advice of other people, this can sometimes stray into ‘undue influence’ – where the person making the Will is pressurised into making a Will in certain terms, perhaps favourable to the person exerting pressure.
This is a difficult allegation to prove as the primary witness would be the deceased, but it is another ground upon which a Will can be found as invalid.
If you think that the Will of a deceased person is invalid or suspicious, we can help you gather more information about the circumstances of the Will being made (where the Will was prepared by a Solicitor) and advise you whether you have a potential claim to challenge the validity of the Will.
Inheritance (Provision for Family and Dependents) Act 1975 Claims
Under the 1975 Act, certain people can challenge the Will of a deceased on the basis that the Will does not make reasonable financial provision for them.
If you fall into one of the following classes, the law considers that the deceased should have made provision for you in their Will, unless there was a good reason why they did not:-
- A spouse or civil partner of the deceased;
- An ex-spouse or ex-civil partner of the deceased who has not remarried nor entered a new civil partnership;
- A child of the deceased;
- Any person was treated by the deceased as a child of the family in relation to a marriage or civil partnership (e.g. step-children);
- Any person who immediately before the death of the deceased was being maintained either wholly or partly by the deceased;
- Any person who, during the whole of the period of two years ending immediately before the death of the deceased, was living in the same household as the deceased as husband or wife or civil partner of the deceased.
In considering a claim under the 1975 Act, the court will balance your needs against those of the other beneficiaries of the estate, as well as your own financial needs. The size and composition of the estate will also be an important factor.
If you think that reasonable provisions have not been made for you in the Will of a deceased family member, we can advise you on whether you may have a valid claim under the Act.
