For many people that have been left out of a will, or who have received a lesser proportion of a loved one’s estate than they expected, the overwhelming feelings are likely to be of injustice and upset. Unfortunately, in the eyes of the law, these feelings do not carry any weight. Legally, there are only a set number of reasons under which a will can be contested.
The number of inheritance disputes making their way to court has been on the rise over recent years. It is predicted that this number is set to rise further as a result of the pandemic; with many elderly people having rushed to make or change their will without following the due legal process.
To compound this, the cost-of-living crisis is hitting people’s pockets, which may make those that have been left out of a will more inclined to challenge it.
Here, Richard Dobson-Mason looks at some of the grounds for inheritance act claims.
Failure to comply with formalities
One of the most common grounds for challenging a will is where the proper process for making a will was not followed. There are several formalities that need to have been met for a Will to be valid, including that the will must be written and signed in the presence of two witnesses, neither of whom can benefit from the will. Individuals that have made a will themselves are less likely to have complied with these conditions leaving the validity of the will open to challenge. There may also be a number of versions of a will and, if the most recent will does not comply with the formalities and is therefore found to be invalid, an older version may be legally binding in its place.
Lack of capacity
Sadly, mental health can deteriorate over time and diseases such as dementia and Alzheimer’s can have a significant impact on the ability of an individual to fully understand their actions. Where a will has been made by someone that could be deemed to have lacked capacity, i.e., didn’t have a full awareness of the implications of their actions, the contents of the will could be challenged.
Undue influence or coercion
For a will to be valid, the Will-maker needs to have come to the decisions regarding the contents of their will without any coercion or pressure from external sources. For a will to be found to be invalid on these grounds, actual undue influence must be proven by corroborative evidence.
Financial provision and maintenance
Certain groups of people can claim for reasonable financial provision or maintenance if a will does not provide ‘adequate provision’ for their financial needs. This can include a spouse or civil partner, a former spouse or civil partner, children, or a cohabitee who had lived with the deceased for two years prior to their death. Such claims need to be brought within six months of the probate being issued.
A will may be open to challenge where doubt exists over whether the will was legitimately made by the deceased and/or regarding a signature on the will. This could happen when a person impersonated the deceased or altered the will as a means of financially gaining from its contents. If fraud is proven then the will be invalid.
Regardless of the circumstances, contesting a will can be a complex process. Seeking legal advice at the outset is likely to help establish if there are grounds for challenging the will. From here, it will be necessary to compile relevant evidence to support your case, which a solicitor will be able to assist with.
Apart from claims for adequate provision, other claims against an estate may be brought up until the expiration of 12 years from the date of death.
When making a will, there are a number of steps that can be taken to try to ensure that disputes do not arise further down the line. Seeking the advice of a solicitor that is an accredited member of SFE (Solicitors for the Elderly), such as O’Donnell Solicitors’ Director Jill Waddington, is a good place to start. As well as seeking initial advice when making a will, it is also important to ensure wills are regularly reviewed, as circumstances can and do change, and that they are properly stored and recorded so that they can be located upon the testator’s death.
To discuss a will dispute, contact Richard Dobson-Mason, Head of Dispute Resolution, via our dispute resolution team contact number on 01457 761 320.