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When You Wish To Contest A Will

View profile for Elizabeth Fyfe
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In December, after five years of hard work and study I was successfully rewarded with the recognition of becoming a fully qualified member of the Association of Contentious Trusts and Probate Specialists.

Being welcomed into a group of such highly skilled Lawyers is a real achievement, particularly as it recognises the work which I, and others, in this area do tirelessly to help grieving families.

"as Lawyers we often use terminology that we
become used to to describe the work that we do"

But what is contentious trusts and probate I hear you say? As Lawyers we often use terminology that we become used to to describe the work that we do. Often we forget, that for those we wish to help, these words do not adequately explain the options and assistance that is available to them and many may be left not realising that there can be help available for them in their time of need. 

With the rise of couples living together without getting married and the apparent increase in homemade wills and unregulated Will draftsman, we are seeing a huge growth in the enquiries we receive but awareness still needs to be raised. 

So what are some of the areas which I am talking about.

Challenging a Will

There is a steep rise in the number of enquiries my colleague Nicola and I are receiving with regard to the potential challenge against a Will when a person has died. There are a number of possible ways that this could be done, some of which are:

     The Will is Not Valid

For a Will to be valid the legal formalities of section 9 of the Wills Act 1837 must be complied with. Basically, this means that the Will must be signed by the person making it, in the presence of two witnesses who must themselves see the person making the Will sign, and then sign the Will themselves in that person’s presence.

This may seem straightforward, but with the rise in DIY home-made Wills, often people making a Will are not aware of these formalities and this can lead to Wills being invalid. If a Will has not been signed in accordance with the section 9 formalities it is not valid and there is nothing that can be done to remedy this.

     Capacity

In order for a Will to be valid the person making the Will must have the mental capacity to make the Will. The test in the case of Banks v Goodfellow is that the person making the Will must: 

  • Understand the nature of making a Will and its effects;
  • Understand the extent of the property of which they are disposing;
  • Be able to comprehend and appreciate the claims to which they ought to give effect;
  • Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.

A person is assumed to have capacity unless it is proven that they did not at the time of making the Will.

     Undue Influence

In the law of England and Wales, a person can leave their estate to whomever they choose. Sometimes, if a person has recently changed their Will, or has left their money to someone unexpected, this can give rise to a suspicion that they had been unduly influenced by that person to change their Will.

There is however no presumption of undue influence and the burden is very high on anyone seeking to prove this.

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Claims under the Inheritance (Provision for Families and Dependants) Act 1975 (“the Inheritance Act”)  

One of the least well known and biggest growing areas which my colleagues and I are seeing in practice are claims made against a persons estate by someone who has either not been named in a Will or if there is no Will, does not inherit automatically under the rules of intestacy.

"if a cohabiting couple have not made
wills to benefit one another and one of the
couple passes away, the other cohabitate
will not Inherit from the others estate
under the rules of intestacy"

There is a common misconception that when a couple who are not married live together they become common law husbands and wives. There is no such legal principle, and if a cohabiting couple have not made Wills to benefit one another and one of the couple passes away, the other cohabitate will not Inherit from the others estate under the rules of intestacy. This often leads to a situation where children of the deceased person to whom the deceased may no longer speak inherits the estate leaving the surviving cohabitant penniless or homeless.

In such circumstances it may be possible for the surviving cohabitant to bring a claim under the Inheritance Act for reasonable financial provision.

It is important to act quickly as there are strict timescales for making any claim which must be made within six months from the Grant of probate or Grant of letters of administration.

It may also be possible for other people to make a claim under the act, such as spouses, children, or someone who has been maintained by the deceased prior to their death. 

Early advice is vital to ensure that a claim can properly be made. 

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This is a challenging and often rewarding area of law, and I am proud to be one of a minority of specialist solicitors who offer this service and part of a thriving department at Thornton Jones who cater for this need.

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