After losing a loved one, one of the most difficult things to have to face is a dispute over the division of assets within a Will, or a dispute if the is no Will at all.
Unfortunately in today’s society with ever more complex family set ups and a rise in the number of people who have drafted their own Wills, disputes over inheritances are more common than ever before.
If you are confronted with a situation where you feel you have been unfairly overlooked in the last Will and Testament of your nearest and dearest, you may naturally assume that nothing can be done to reverse those final wishes; however, in certain circumstance it is actually possible to dispute a Will’s validity and its content.
How can a Will be
contested?
As
the law stands, a Will is recognised as valid provided that it complies with
statutory formalities under the Wills Act 1837, and that the person making the
Will is of completely sound mind. There are, however, a number of incidences
where a Will could be deemed to be invalid. For example if the deceased was
pressured or coerced into signing the Will (this is called undue influence) or
if the deceased lacked the necessary mental capacity to sign or to give
instructions for a Will. This could happen where the person was suffering from
dementia or a comparable mental illness when the Will was drafted. Often alarm
bells ring in particularly unusual or suspicious situations, for example where
a large proportion of money is divested away from the family to a ‘friend’ of
the deceased. If it can be proven that the individual at the time of making the
Will did not understand what they were signing, they lacked mental capacity or
that they were unduly influenced by another person(s), it may in fact be deemed
invalid. This would automatically provide an opportunity to challenge the Will
in Court.
Unfortunately disputes also frequently arise because a Will has been drafted incorrectly either by a professional or at home. Such mistakes are becoming more common thanks to the increase in do-it-yourself Wills found online or from supermarkets or by Wills drafted by unqualified Will Writers. Although these may be suitable for people with simple affairs, anyone with a larger estate or more intricate finances (for example those with children from a previous marriage or those whose estates exceed the Inheritance Tax threshold) should seek professional legal and financial advice. If you have reason to believe that a Will has been negligently drafted because it did not reflect the wishes of the deceased or was incorrectly drafted and signed, then you can potentially pursue a claim for professional negligence.
Can anything be done if
a Will is valid, but you believe that you have been unfairly provided for
within that Will?
If
you believe that you have not been properly provided for, either in the Will
that was prepared by the deceased or because the deceased’s estate was dealt
with under the intestacy rules because there was no Will, then you could
potentially have a right to make a claim against the estate. The law can
provide protection for family members and other categorised individuals, and
that protection comes in the shape of the Inheritance (Provision for Family and
Dependants) Act 1975. There are certain relationship criteria and timeframes
which you must adhere to in order to be entitled to make a claim.
What to do next?
If
you are thinking of challenging a Will, it is important to seek specialist
legal advice as soon as possible because strict time limits may be imposed and
any time delay may prevent you getting the sums to which you are entitled.
For further information about challenging a Will or to discuss another inheritance dispute-related issue, please contact Luke Watson, Partner and Head of Dispute Resolution at Mowbray Woodwards Solicitors, on 01225 485700 or via email at law@mowbraywoodwards.co.uk.