Contesting a Will
Do you believe that the Will is not valid or want to make a financial claim from an estate of a loved one? You may want to consider contesting the Will.
We regularly see clients who come in to see us who are concerned regarding the validity of a Will. They could be concerned that they did not know what they were doing when they wrote the Will or someone has influence them. In in some cases, they believe that the Will is a forgery.
If you believe that someone’s Will is invalid, we can assist by having a look to see if you have a valid ground for contesting a Will. You may also be able to make a financial claim against someone’s estate if you qualify.
Ground for contesting a Will
Generally speaking the grounds for contesting a Will may be on the following basis.
- If a Will is made the person who signed it must be of sound mind at the time of the signature. If they did not have capacity at the time of the signature, you may be able to argue that the Will is invalid. This is called lack of testamentary capacity.
- There are rules relating to how a Will must be signed. If the Will is not signed correctly or failed to meet the requirements of a valid Will then it may be challenged. This is called lack of valid execution.
- Someone who signed a Will must have knowledge of and approval of the contents of the Will. To use this ground, you must prove that the testator was not aware of the contents of the Will or that there were suspicious circumstances. This is called lack of knowledge or approval.
- You may be able to prove that the testator (the person signing the will) was unduly influenced, coerced or under duress at the time they signed the Will. This is called undue influence.
- It may be that the Will has been forged. Alternatively, someone has made a fraudulent allegation and as a direct result the testator has changed their Will. This is called fraud or forgery.
- Sometimes the Will fails to carry out what the testator intended either because of a clerical error such as a typo or an error on behalf of the person drafting the Will. If this is the case you may be able to use rectification or constructive claims.
Failure to make financial provision
If you are not included in a Will or if you are not a relation for the purposes of the rules of Intestacy you may be able to make a claim for further financial provision. This is under Inheritance (Provision for Family and Dependants) Act 1975.
The Court has the ability to vary the distribution of the deceased estate for certain family members and dependants.
The rules state that a spouse or civil partner is entitled to such financial provision as in reasonable in all the circumstances.
Other people can make a claim if they are
- Former spouse or civil partner of the decease who has not remarried or entered into a new civil partnership
- If they have been living with the deceased for at lease two years prior to their death
- A child of the deceased (excluding adults)
- Someone who is treated as a child of the deceased i.e. step-children or foster children
- Someone who is ‘maintained’ by the deceased.
Anyone else is entitled to such reasonable provision as is necessary for their maintenance insofar as the estate can provide it.
If you believe that you have a claim, or someone is making a claim against an estate then please do not hesitate to contact us. We have a wealth of experience pursing and defending claims against estates.
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