Challenging a Will

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When someone dies and their last documented wishes are unveiled by the reading of their Will, friends and relatives can be shocked and distressed by the contents of the document. The law on Wills is very liberal, allowing benefactors to leave their worldly belongings to almost anyone, even where their choices seem entirely unfair and unjust. The only instances in which Wills can be challenged is where they are invalid or where, in very rare circumstances, they fail to provide for someone who can point to a legal stipulation expressly stating that they ought to have been provided for.

 

Is the Will Valid?

  • Has the Proper Procedure Been Observed?

Wills must comply with strict rules, or else they will be invalid. To be valid, a Will must have been made by someone over 18, be written, and have been signed by the person making the Will in the presence of two witnesses who stand to inherit nothing from it. A correctly drafted document will make it clear that the two witnesses expressly saw the maker sign the document. This is known as an attestation clause. A Will may still be valid even without one of these clauses. The ability to challenge the deceased’s wishes on the grounds that it lacks one would be a matter for a legal specialist such as Will Claim Solicitors

  • Have the Personal Circumstances of the Person Making the Will Invalidated It?

If the deceased was under pressure or duress from any other person at the time the Will was written, the Will is not valid. The deceased must also have been of sound mind at the time the document was made and signed. This means that they must have been able to understand the consequences of their stipulations. The fact that they have disinherited their family does not qualify as a mental health problem, and the court’s aim will always be to carry out the deceased’s wishes as closely as possible. The law in this area is slightly eccentric, with no set rules and each case being ruled depending on its individual facts. Two families with similar circumstances may challenge Wills with two very different outcomes, as demonstrated by the verdicts in Kostic v Chaplin and others and Re Bechal, Blackman v Man.

Does the Will Adequately Provide for You?

In extremely rare circumstances, it is possible to challenge a Will if you have not been provided for. The people eligible to make such challenges include current and former spouses and current or former civil partners, provided they have not remarried or entered into a new civil partnership, and cohabitees who have lived with the deceased for at least two years immediately prior to their death. Children, stepchildren or anyone treated as a ‘child of the family’ may also be eligible if they were still a dependent at the time of the death. Adult children will struggle to challenge the Will on these grounds, unless they can prove ongoing dependency. Anyone else who can show financial dependence on the deceased may also theoretically have a claim. Challenges of this type must be made no more than six months after the grant of probate or letters of administration. The legal principles governing such challenges are extremely complex and specialist advice should be sought to determine whether or not there is a claim to be made.

Did You Have an Interest in Property Owned by the Deceased?

Those who share joint ownership with the deceased of property left in the Will, or those who can show they have made a significant financial contribution towards the purchase of property which was in the sole name of the deceased at the time of their death, will have rights independent of the Will, and if these are threatened by the stipulations they too should seek a solicitor’s advice.

If you believe that you have a right to challenge a Will, seek legal advice today. Claims must be made within a set time period, or else the stipulations will become unchallengeable and your right to the property will be lost forever. 

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